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Florida Appellate Court Reverses Conspiracy Conviction

Florida Appellate Court Reverses Conspiracy Conviction Because of Improper Jury Instruction as to Members of the Conspiracy.

In the case of Morant v. State, 35 Fla. L. Weekly D339b (Fla. 1st DCA February 10, 2010) the court reversed a conviction for conspiracy to commit home invasion robbery with a firearm.

The defendant was charged with conspiring with Ms. Brooke Rushton to commit the crime of home invasion robbery with a firearm. The trial court instructed the jury that it could find the defendant guilty if evidence showed that the defendant conspired with Brooke Rushton "and/or another black male."

During the opening statement the prosecution argued that the appellant conspired with Ms. Rushton or "another black male."

The evidence from the alleged victim was that the appellant and two other black males entered her bedroom and proceeded to commit home invasion robbery.

There was no objection to the jury instruction by counsel for the defendant and therefore the appellate court had to consider whether the jury instruction was fundamental error. The appellate court noted that it was fundamental error when the jury is instructed that a defendant may be convicted for uncharged acts. It cited toTrahan v. State, 913 So. 2d 729, 729 (Fla. 5th DCA 2005). In Trahan, the Fifth District Court of Appeal found that fundamental error existed if the uncharged crime involved an alternative factual theory for proving the offense charged. Here, the charging document specifically narrowed the crime of conspiracy to conspiracy with a specific identified individual, that is, Ms. Rushton. The court held that it was fundamental error to allow the defendant to be convicted for conspiring with Ms. Rushton "and/or another black male."

The jury instruction given, therefore allowed a conviction of a conspiracy different from the one charged which was a conspiracy between the defendant and Ms. Rushton and not the defendant and some other person.