          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-1519
                  _____________________________

ISAAC WILLIAMS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Martin A. Fitzpatrick, Judge.

                        November 7, 2018


PER CURIAM.

    Isaac Williams was tried and convicted of armed burglary of a
dwelling with person assaulted. He seeks a new trial, arguing that
the charging document was fundamentally defective. We affirm
because it is clear that the information sufficiently alleged the
elements of burglary and Mr. Williams understood the charges he
was facing.

     When the State first charged Mr. Williams in this case, the
original information charged him with attempted armed burglary
of a dwelling with person assaulted. The day before trial, the State
filed an amended information to change the charge from an
attempt to a completed armed burglary of a dwelling with person
assaulted. The caption was changed to “ARMED BURGLARY OF
DWELLING WITH PERSON ASSAULTED” and included a
citation to section 810.02(2). But the body of the document wasn’t
changed. On the morning of trial, the court noted that the amended
information had been filed. Counsel for Mr. Williams stated he was
not prejudiced by the amendment and the trial for burglary
proceeded. No one noticed the mismatched language in the caption
and body of the information. And at trial, Mr. Williams’s counsel
repeatedly referenced the completed burglary charge against his
client. The evidence at trial showed that Mr. Williams and another
armed man pushed into the victim’s home after he opened the door,
hit him over the head with a gun, and stole money and drugs from
the home. After hearing the evidence, the jury returned a verdict
finding Mr. Williams guilty of armed burglary of dwelling with
person assaulted. At no time did Mr. Williams assert any objection
related to the information or to his notice of the charges.

     Now, on appeal, Mr. Williams contends that we must reverse
for a new trial because the body of the charging document alleged
attempted burglary and not a completed burglary. But we do not
agree. Deficiencies in charging documents are not per se
reversible. Weatherspoon v. State, 214 So. 3d 578, 584 (Fla. 2017).
Rather, “[g]enerally the test for granting relief based on a defect in
the information is actual prejudice to the fairness of the trial.” Id.
(quoting Price v. State, 995 So. 2d 401, 404 (Fla. 2008)). According
to Weatherspoon, the information is “legally sufficient” if it
expresses the elements of the offense charged in such a way that
“the accused is neither misled or embarrassed in the preparation
of his defense nor exposed to double jeopardy.” Id. The rules of
criminal procedure make the same point:

    No indictment or information, or any count thereof, shall
    be dismissed or judgment arrested, or new trial granted
    on account of any defect in the form of the indictment or
    information or of misjoinder of offenses or for any cause
    whatsoever, unless . . . the indictment or information is
    so vague, indistinct, and indefinite as to mislead the
    accused and embarrass him or her in the preparation of
    a defense or expose the accused after conviction or
    acquittal to substantial danger of a new prosecution for
    the same offense.


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Fla. R. Crim. P. 3.140(o).

     In this instance, the record shows that Mr. Williams was not
prejudiced by the defect in the information. Mr. Williams knew of
the completed burglary charge. Mr. Williams’s counsel
acknowledged receiving the amended information and its
completed burglary charge, which referenced section 810.02(2)(a)
and (b), Florida Statutes: “I have received it. I’m not prejudiced by
the amendment. [And I] enter a plea of not guilty to the amended
information.” In his opening remarks, defense counsel also
demonstrated a clear understanding that Mr. Williams was
defending against a burglary charge and not an attempt charge.
Later at trial, jury instructions were given for completed burglary.
With all this in view, we see no prejudice to Mr. Williams. He knew
that he was being tried for a completed burglary charge, he
defended against the charge, and he did not object to it. See
Moseley v. State, 7 So. 3d 550, 552 (Fla. 5th DCA 2009) (“In this
case, it is clear that Moseley suffered no actual prejudice. Rather,
he defended the case at all stages of the proceeding, through
verdict and appeal, under the assumption that he had been
charged pursuant to subsection (1) of the statute . . . .”).

     In addition to not being uninformed or misled about the
charges, the charging document addressed the basic elements of
the offense of burglary. Weatherspoon, 214 So. 3d at 584. In
addition to citing the burglary statute, section 810.02(2), by
alleging that Mr. Williams attempted to enter or remain in the
dwelling, the body of the charging document put Mr. Williams on
notice of the offense’s entrance element. The State’s evidence
regarding the entrance element was that Mr. Williams was
involved in a scuffle in the doorway of the victim’s home and
pressed forward and got inside. And even the State’s closing
argument regarding the lesser included offense of attempted
burglary was argued on the basis of proving that Mr. Williams and
his accomplice “went in there and they forced their way into this
home.” Under these facts, there is little risk of prejudice to Mr.
Williams’s defense since he was aware of the State’s evidence and
argument on the entrance element of the offense showing an actual
entry. Nor is there danger that Mr. Williams could be separately
charged with attempted burglary as that charge was subsumed by
the completed burglary. See Aubuchon v. State, 110 So. 3d 55, 58

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(Fla. 2d DCA 2013) (“[U]nder section 775.021(4)(b)(2), an attempt
to commit an offense is considered to be subsumed within the
completed offense because the offense of attempt is usually a
degree variant of the primary offense.”).

     Appellant relies upon Castillo v. State, 929 So. 2d 1180, 1182
(Fla. 4th DCA 2006), which is distinguishable. There, the
defendant was charged with burglary of a structure, but was
ultimately convicted of burglary of a dwelling. In that case, it
wasn’t clear that the appellant knew that the State was proceeding
against him for burglary of a dwelling. The charging document did
not put the defendant on notice of the dwelling element. And a jury
finding that a building is a dwelling requires proof that is different
from the kind required to prove that the building is a structure.
Different from that case, Mr. Williams has not demonstrated a
fundamental error here because he knew affirmatively that the
State intended to try him for a completed burglary, and the
charging document gave him notice of the entrance element of the
offense.

    The judgment and sentence are AFFIRMED.

LEWIS, OSTERHAUS, and BILBREY, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Andy Thomas, Public Defender, and M. J. Lord, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Appellee.




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