WAYMON KIRKLAND,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-4751

_____________________________/

Opinion filed August 10, 2017.

An appeal from the Circuit Court for Gadsden County. 

Barbara K. Hobbs, Judge.

Candice K. Brower, Regional Counsel, Office of Criminal Conflict and Civil 

Regional Counsel, Region One, Gainesville, and Michael J. Titus, Assistant 

Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel,

Region One, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Sharon S. Traxler, Assistant Attorney 

General, Tallahassee, for Appellee.

WINOKUR, J.

Waymon Kirkland appeals a judgment and sentence for felony battery and 

aggravated battery with a deadly weapon. We reverse the felony battery conviction.
2

The State filed a two-count information charging Kirkland in Count I with 

aggravated battery with a deadly weapon upon Dedrick Hall and in Count II with 

aggravated battery with a deadly weapon upon Anterkeith Burns. The evidence at 

Kirkland’s bench trial showed that Kirkland struck both men with a stick, Hall on 

the leg and Burns on the head. The court found Kirkland guilty as charged on Count 

II, but guilty of the lesser offense of felony battery on Count I. The court 

acknowledged, and the State concedes on appeal, that there was no evidence of great 

bodily harm, permanent disability, or permanent disfigurement presented at trial to 

support the felony battery conviction.* However, Kirkland did not object to the 

felony battery conviction on this ground, so we must find fundamental error in order 

to reverse. See § 924.051(3), Fla. Stat.

We first observe that the lack of evidence supporting Kirkland’s conviction 

for felony battery is not itself grounds for reversal. While no evidence was presented 

to prove one of the elements of felony battery (great bodily harm, permanent 

disability, or permanent disfigurement), there was evidence of a crime. Specifically, 

the evidence showed that Kirkland committed a battery by striking Hall on the leg. 

Therefore, Kirkland’s failure to object precludes reversal on this ground. F.B. v. 

 * Felony battery consists of a simple battery (actually and intentionally 

touching or striking another person against the will of the other) that “[c]auses great 

bodily harm, permanent disability, or permanent disfigurement.” § 784.041(1), Fla. 

Stat.
3

State, 852 So. 2d 226, 230 (Fla. 2003) (holding that a defendant can present an 

unpreserved claim of insufficiency on appeal in a noncapital case only when the 

evidence is “insufficient to show that a crime was committed at all”) (emphasis 

added).

However, we agree that it was fundamental error for the trial court to find 

Kirkland guilty of felony battery because not all of the elements of felony battery 

were charged in the information. The State charged two counts of aggravated battery. 

Aggravated battery is a battery where the defendant either 1) intentionally or 

knowingly causes great bodily harm, permanent disability, or permanent 

disfigurement, or 2) uses a deadly weapon. § 784.045(1), Fla. Stat. In the former 

situation, the charged crime includes all of the elements of felony battery, so felony 

battery is a necessarily lesser-included offense. In the latter situation—aggravated 

battery with a deadly weapon—felony battery is not a necessarily lesser-included 

offense because the element of great bodily harm is not contained within the charged

crime.

Here, the State charged Kirkland with committing “a battery upon Dedrick 

Hall by Hitting with a Bat, a deadly weapon.” That is, the State charged Kirkland 

with aggravated battery with a deadly weapon. Because Kirkland was only charged 

with aggravated battery using a deadly weapon, it was fundamental error, in this 

specific context, to convict him of felony battery. See K.H. v. State, 763 So. 2d 1187, 
4

1188 (Fla. 4th DCA 2000). To do so violated his due process right to be notified of

the specific charges against him. See Ray v. State, 403 So. 2d 956, 959-60 (Fla. 

1981).

We recognize the rule regarding fundamental error set forth in Ray, where the 

Florida Supreme Court held as follows:

[I]t is not fundamental error to convict a defendant under an erroneous 

lesser included charge when he had an opportunity to object to the 

charge and failed to do so if: 1) the improperly charged offense is lesser 

in degree and penalty than the main offense or 2) defense counsel 

requested the improper charge or relied on that charge as evidenced by 

argument to the jury or other affirmative action. Failure to timely object 

precludes relief from such a conviction.

Id. at 961 (footnote omitted) (emphasis added). The rule in Ray applies where the 

defendant had an opportunity to object. A defendant tried at bench trial has limited 

opportunities to object to an erroneous lesser-included offense, primarily because 

there is no charge conference or verdict form. See Chambers v. State, 880 So.2d 696, 

702 n.10 (Fla. 2d DCA 2004) (en banc) (observing that Ray was distinguishable from 

a case involving bench trial because defendant does not have opportunity to object 

to trial court’s consideration of inappropriate lesser offenses); Nesbitt v. State, 819 

So. 2d 993, 994 n.1 (Fla. 5th DCA 2002) (noting that Ray does not apply in cases 

involving bench trials because “those cases did not present the opportunity to object 

to the trier of fact’s consideration of inappropriate lesser offenses in lieu of the main 

charge, an opportunity Ray finds to be significant”).
5

The Third District’s opinion in V.C. v. State, 63 So. 3d 831 (Fla. 3d DCA 

2011), is instructive. Like here, the State charged V.C. with aggravated battery with 

a deadly weapon and did not allege great bodily harm. Nevertheless, after a nonjury 

adjudicatory hearing, the trial court found V.C. guilty of felony battery. The Third 

District concluded that the trial court erred, explaining that felony battery is a 

category two permissive lesser-included offense of aggravated battery and, as such, 

the State was required to charge all the requisite elements of felony battery in the 

information in order for V.C.’s adjudication to be valid. Id. at 835. The court further 

explained why the error was fundamental:

V.C.’s trial counsel did not have an opportunity to object to the trial 

court’s finding because, as this was a juvenile proceeding and the case 

was tried to the court rather than to a jury, no jury instructions were 

prepared. Additionally, the record reflects that V.C. did not request that 

the trial court consider any lesser included offenses, neither side argued 

that the evidence supported a finding that V.C. committed a felony 

battery, and V.C. took no action that in any way invited the error.

Id. at 834-35.

We are unpersuaded by the State’s effort to distinguish V.C. on grounds that 

Kirkland, as an adult, had a right to a trial by jury affording him the opportunity to 

object within the meaning of Ray. Kirkland did not waive his due-process right to 

be adequately notified of the crimes of which he could be convicted by waiving his 

right to a jury trial.

We conclude that the trial court committed fundamental error by convicting 
6

Kirkland of a crime for which he was not charged. Moreover, Kirkland did not 

request the trial court to consider felony battery as a lesser-included offense, neither 

side argued for conviction of felony battery, and Kirkland did not in any way invite 

the error. We instruct the trial court to vacate the judgment and sentence for felony 

battery and enter a judgment for the necessarily lesser-included offense of simple 

battery. V.C., 63 So. 3d at 835. We affirm Kirkland’s conviction for aggravated 

battery with a deadly weapon.

Affirmed in part; reversed in part; and remanded with directions.

ROBERTS and M.K. THOMAS, JJ., CONCUR.