Florida District Courts of Appeal, 2013

State v. Robinson

State v. Robinson
Florida District Courts of Appeal · Decided October 18, 2013 · Griffin, Torpy, Wallis
123 So. 3d 679; 2013 WL 5658348; 2013 Fla. App. LEXIS 16590 (Southern Reporter, Third Series)

State v. Robinson

Opinion of the Court

PER CURIAM.

The State challenges the departure sentence after Appellee was convicted of aggravated assault with a firearm. Appellee commendably concedes error on this point but asserts by cross-appeal that the court gave erroneous jury instructions that amounted to fundamental error, necessitating a new trial. We agree with Appel-lee and reverse and remand for a new trial.

The aggravated assault instruction was fundamentally erroneous because it was based on a theory not charged in the information. Grau v. State, 101 So.3d 922 (Fla. 5th DCA 2012); Fuentes v. State, 730 So.2d 366 (Fla. 4th DCA 1999). Because of our conclusion on this issue, it is not necessary to address the State’s argument *680that Appellee invited error in the self-defense instruction.

REVERSED AND REMANDED.

TORPY, C.J., GRIFFIN and WALLIS, JJ., concur.

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