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Chambers v. State4/28/2004
n untenable result. A defendant whose counsel fails, after months of discovery and pretrial preparation, to recognize that the information does not allege all the necessary elements of the charged offense, and who proceeds to trial and is convicted, may challenge the defective information for the first time on appeal because the error is deemed fundamental. See Gray, 435 So.2d 816. However, a defendant whose counsel skillfully marshals the facts and the law so as to convince the fact finder to convict the defendant of only a permissive lesser-included offense is not able to challenge the information for the first time on appeal because the error is not fundamental. The defective information in the first instance *704 is deemed to be fundamental error because the defendant has not been apprised of the charge against which he must defend. This is true even though counsel had ample time to review the information, the evidence, and the law in preparation for trial. In the second instance, the error is not fundamental even though defense counsel may have been first made aware that the State was asking for an instruction on the permissible lesser-included offense during the charge conference. This distinction requires counsel to immediately recognize the deficiency of the charging instrument and make a proper objection or have his silence considered a waiver of his client's due process objection. See Ray, 403 So.2d 956. This result is troublesome because an information that fails to allege an essential element of the offense creates fundamental error simply because the defendant had no notice of the offense with which he was being charged. The fundamental nature of this error is not alleviated by the attorney's success at having the offense reduced to something less than the original charge.
Unless the Florida Supreme Court recedes from Gray, I would argue that the majority's reliance on Ray is misplaced because the purported holding is dicta and was directly contradicted by the subsequent holding in Gray. Accordingly, I would not recede from our opinions in Mateo, 757 So.2d 1229, and Wilburn, 840 So.2d 384, but rather, I would grant Mr. Chambers the relief he has requested.
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