       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                               J.V., a child,
                                Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D16-442

                              [ July 5, 2017 ]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach   County;    Rosemarie     Scher,    Judge;    L.T.   Case     No.
502015CJ002951AMB.

  Carey Haughwout, Public Defender, and Virginia Murphy, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L.
Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    J.V. appeals a disposition order adjudicating him delinquent for
multiple crimes, including two counts of possession of drug paraphernalia.
Appellant argues that his adjudications on two separate counts for
possession of drug paraphernalia arising from the same incident violated
double jeopardy. We decline to reach the double jeopardy issue and,
instead, reverse the adjudications on both paraphernalia counts because
of a fundamental defect in the petition for delinquency.

   After a traffic stop and search of the vehicle in which appellant was a
passenger, police officers found a firearm and packaged narcotics inside
the engine compartment. The narcotics were contained in a small piece of
plastic that looked “like a corner of a grocery bag,” and inside the plastic
was “a cellophane wrapper which contained the Heroin and then a loose
piece of rock cocaine.” Appellant admitted that both the gun and the drugs
belonged to him, and that he put them underneath the hood of the car.

   Pertinent to this appeal, appellant was charged by juvenile delinquency
petition with two counts of possession of drug paraphernalia under section
893.147, Florida Statutes (2015). This section states in relevant part:

      (1) USE OR POSSESSION OF DRUG PARAPHERNALIA.—It is
      unlawful for any person to use, or to possess with intent to
      use, drug paraphernalia:

      (a) To plant, propagate, cultivate, grow, harvest, manufacture,
      compound, convert, produce, process, prepare, test, analyze,
      pack, repack, store, contain, or conceal a controlled
      substance in violation of this chapter; or

      (b) To inject, ingest, inhale, or otherwise introduce into the
      human body a controlled substance in violation of this
      chapter.

§ 893.147(1), Fla. Stat. (2015).

   Count V of the petition charged appellant with possession of
paraphernalia, specifically a plastic bundle, and Count VI charged him
with possession of paraphernalia, specifically cellophane wrap. Both
counts charged appellant with possession of “drug paraphernalia being
used, intended for use, or designed for use in injecting, ingesting, inhaling,
or otherwise introducing into the human body a controlled substance,
contrary to Florida Statute section 893.147(1)(b).”

    At trial, however, the state prosecuted appellant on the theory that
appellant used or possessed drug paraphernalia to “pack, repack, store,
contain, or conceal” a controlled substance, which would be a violation of
section 893.147(1)(a). Yet, as noted above, the state did not allege that
element in the delinquency petition; nor did the state cite section
893.147(1)(a) in the petition. The petition was thus fundamentally
defective as to Counts V and VI because those counts cited the wrong
statutory provision and failed to allege an essential element of the crime
for which appellant was tried. See Morgan v. State, 146 So. 3d 508, 512
(Fla. 5th DCA 2014) (“[A] criminal defendant is entitled to a trial on the
charges contained in the information and may not be prosecuted for
uncharged offenses, even if they are of the same general character or
constitute alternative ways of committing the charged offense.”); see also
Castillo v. State, 929 So. 2d 1180, 1181 (Fla. 4th DCA 2006) (“It is a basic
tenet of constitutional law that due process is violated when an individual
is convicted of a crime not charged in the charging instrument.”).

   Although appellant does not raise this issue on appeal, we conclude

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that the fundamental defect in the charging document amounts to
fundamental error which can be addressed sua sponte. See Honaker v.
State, 199 So. 3d 1068, 1070 (Fla. 5th DCA 2016) (“[W]e may sua sponte
address fundamental error apparent on the face of the record.”).

   Accordingly, we reverse and remand for the trial court to enter a
corrected disposition order reflecting a dismissal of Counts V and VI.
Because we are remanding for a dismissal of these possession of
paraphernalia counts, we need not address appellant’s double jeopardy
argument regarding his adjudications for both counts of possession of
paraphernalia.

   Reversed and Remanded.

MAY and CIKLIN, JJ., concur.

                           *      *        *

   Not final until disposition of timely filed motion for rehearing.




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