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Lane v. State9/17/2003
damental error for a person to be convicted of an offense not charged in the information." Id. at 1051. For this proposition, Levesque cited to K.H. Levesque ignored the language in K.H. which acknowledges the rule of Ray, quoted above.
Levesque fell within the Ray rule. Aggravated battery was "lesser in degree and penalty" than the main offense of second degree murder. Ray, 403 So. 2d at 960. The defendant's failure to properly object at trial should have been fatal to his argument in Levesque. It was not.
Levesque also conflicts with Tolbert. In that case, Tolbert was charged with five counts of sexual battery using actual force likely to cause serious personal injury . See § 794.011(3), Fla. Stat. (2000). At the charge conference, the defense stated that "it did not want the jury to be instructed on any lesser included offenses." Tolbert, 679 So. 2d at 817. As to each count of sexual battery, the court permitted a lesser included offense of aggravated battery. Id. The defendant was convicted of five counts of aggravated battery.
Aggravated battery was a permissive lesser included offense of the type of sexual battery charged in Tolbert. However, not all the elements of aggravated battery were alleged in the charging information. Tolbert argued that he could not be convicted of the batteries, citing the rule that a defendant may not be convicted of a permissive lesser included offense where the information is silent as to an essential element of that offense. Id. at 818.
We held that Tolbert had failed to preserve this argument for appellate review, by failing to raise it at trial. His general objection was insufficient. We wrote:
that this issue was not preserved for appeal because appellant's general objections to instructions on any lesser included offenses did not apprise the trial court of the ground now relied upon by appellant, i.e., that an element of aggravated battery was not alleged in the information. It is well settled that in order to preserve an issue for appellate review, the specific legal ground or argument relied upon for appeal must have been presented to the trial court. In the instant case, it is reasonable that the trial court might have believed appellant's general objections were based on a lack of evidence as to any lesser included offenses.
Id. (citation omitted). Tolbert was consistent with Ray because aggravated battery, a second degree felony, is lesser in degree and penalty, than the type of sexual batteries charged, all life felonies. See § 794.011(3), Fla. Stat. (2000).
Levesque cited to neither Ray nor Tolbert. It conflicts with both of them. It is not necessary to en banc this case to formally recede from Levesque, because Ray, a Florida supreme court case, controls. See Corporate Sec. Group v. Lind, 753 So. 2d 151, 153 (Fla. 4th DCA 2000). Levesque is merely a rogue case, one decided contrary to controlling precedent which is not mentioned in the opinion.
GUNTHER and KLEIN, JJ., concur.
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