FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2022-1820

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JUAN RAMON NAVA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Liberty County.

James C. Hankinson, Judge.

February 21, 2024

WINOKUR, J.

Juan Ramon Nava appeals his conviction for failure of a 

sexual offender to report a change in information. We affirm the 

judgment and sentence in all respects, but write to address Nava’s 

claim that the jury instructions in his case were fundamentally 

erroneous.

I

The State filed a one-count information against Nava. The 

title of the count read as follows: FAILURE OF SEXUAL 

OFFENDER TO REPORT A CHANGE IN INFORMATION. The 

body of the charge read in full as follows:
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On or about December 9, 2021 [Nava] did unlawfully 

as a “sexual offender” per Section 943.0435(4) (fail to 

report a change in the information required to be 

provided pursuant to Section 943.0435(4)(b)(l), to wit: 

Failed to Update Address, within 48 hours as required as 

follows:

To the Department of Law Enforcement through 

their online system; in person at the Liberty County 

Sheriff’s Office; in person at the Department of 

Corrections, or in person at the Department of Juvenile 

Justice, contrary to Sections 943.0435(9) & (14)(c), 

Florida Statutes. 

Section 943.0435, Florida Statutes, is entitled “Sexual 

offenders required to register with the department; penalty.” 

Subsection (9)(a) states that a violation of this section constitutes 

a third-degree felony. 

Subsection (4), which sets forth requirements for change of 

residence for sexual offenders, identifies several ways that a 

sexual offender may violate section 943.0435. The following table 

compares the two of those requirements:

943.0435(4)(a) 943.0435(4)(b)1.

“within 48 hours after any 

change in the offender’s 

permanent, temporary, or 

transient residence . . . , the 

offender shall report in person 

to a driver license office . . . .”

“A sexual offender who vacates 

a permanent, temporary, or 

transient residence and fails to 

establish or maintain another 

permanent, temporary, or 

transient residence shall, 

within 48 hours after 

vacating . . . , report in person 

to the sheriff’s office of the 

county in which he or she is 

located.”

The information in this case charged a violation of section 

943.0435(9), Florida Statutes, referring to the requirements of 

section 943.0435(4).
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It is unclear whether the State alleged a specific violation of 

paragraph (4)(a) or subparagraph (4)(b)1. On the one hand, the 

information explicitly mentions section 943.0435(4)(b)1., which 

generally applies to “homeless sexual offenders.” See State v. 

Cutwright, 41 So. 3d 389, 391 (Fla. 1st DCA 2010) (noting that 

section 943.0435(4)(b) “provides for the registration of a transient 

residence for homeless sexual offenders”); see also Peterson v. 

State, 198 So. 3d 1064, 1066 (Fla. 1st DCA 2016) (“[Section 

943.0435(4)(b) requires] that homeless sexual offenders tell the 

sheriff’s office where they can be found.”).

On the other hand, the information mentions a failure to 

update an address—which suggests a violation of section 

943.0435(4)(a). See generally Griffin v. State, 969 So. 2d 1161, 1162 

(Fla. 1st DCA 2007) (“Section 943.0435(4)(a) requires a sex 

offender to report to the Department of Motor Vehicles, in person, 

within 48 hours after a permanent or temporary address change 

to renew his ‘driver’s license or identification card.”).

Nava never addressed this discrepancy at trial. Instead, both 

Nava and the State treated the case as if the information charged 

Nava with failing to report a change of address, required by section 

943.0435(4)(a). The State claimed that Nava had either moved 

from one place to another or had established a second, unreported 

residence. Nava argued that he had not moved at all, he had just 

moved one of his trailers to the second property.

A single, standard instruction addresses subsection 

943.0435(4), Florida Statutes. The instruction provides trial courts 

with specific options for violation of subsections (4)(a) and (4)(b)1.

In this case, however, the trial court did not instruct the jury based 

on either of those options. Instead, the trial court created a unique, 

non-standard instruction. The following table compares the 

standard instruction options with the actual instruction provided 

to the jury in this case:
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§ 943.0435(4)(a) § 943.0435(4)(b)(1) This case

Defendant is a 

sexual offender.

Defendant is a 

sexual offender.

Juan Nava has 

agreed or 

stipulated that he 

has been convicted 

as a sexual 

offender...

Defendant 

[established] 

[maintained] a 

permanent, 

temporary, or 

transient residence 

in (name of county) 

County, Florida.

Defendant 

[established] 

[maintained] a 

permanent, 

temporary, or 

transient residence 

in (name of county) 

County, Florida.

Juan Nava 

established or 

maintained a 

permanent, 

temporary, or

transient 

residence in 

Liberty County, 

Florida.

Defendant 

knowingly failed to 

report in person to 

a driver’s license 

office of the 

Department of 

Highway Safety 

and Motor Vehicles

. . . within 48 hours 

after any change in 

[his] [her] 

permanent, 

temporary, or 

transient residence.

Defendant knowingly 

failed to report in 

person to an office of 

the sheriff of (name 

of county) County, 

within 48 hours of 

vacating [his] [her] 

permanent residence 

and failing to 

[establish] 

[maintain] another 

[permanent] 

[temporary] 

[transient] residence.

Juan Nava 

knowingly failed 

to report a change 

of his address in

person at an office 

of the sheriff of 

Liberty County or 

the Department of 

Corrections within 

48 hours after the 

change.

See Fla. Std. Jury Instr. (Crim.) 11.14(d). The third element of the 

jury instruction actually provided in this case combines parts of 

subsections (4)(a) and (4)(b)1. As to (4)(a), the instruction stated 

that “Juan Nava knowingly failed to report a change of his 

address.” This suggests that Nava moved to another, physical 

location. With regard to (4)(b)1., however, the instruction stated 

that Nava failed to report to “the sheriff of Liberty County or the 

Department of Corrections.” This suggests that Nava became 

homeless—as sexual offenders with a new address report to the 
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Department of Highway Safety and Motor vehicles whereas sexual 

offenders with no new address report to the local sheriff’s office. 

Nava acknowledges that he failed to object to the jury 

instructions, but he claims that the discrepancy between the 

elements charged in the information and the elements set forth in 

the instructions constitutes fundamental error, for which he is 

entitled to reversal even without a proper objection. We disagree. 

Under the particular circumstances of this case, the inconsistency 

between the information and the instructions does not render 

Nava’s conviction fundamentally erroneous.

II

Jury instructions “are subject to the contemporaneous 

objection rule, and absent an objection at trial, can be raised on 

appeal only if fundamental error occurred.” Reed v. State, 837 So. 

2d 366, 370 (Fla. 2002) (quoting State v. Delva, 575 So. 2d 643, 644 

(Fla. 1991)).

Because Nava did not object to the jury instruction in this 

case, his claim of error may only be reviewed for fundamental 

error. See Cruz v. State, 320 So. 3d 695, 722 (Fla. 2021) (reviewing 

error from omitted instruction for fundamental error because the 

defendant did not object to the omission); see also Knight v. State, 

286 So. 3d 147, 151 (Fla. 2019) (“In the absence of a 

contemporaneous objection at trial, a jury instruction error is only 

subject to relief in the event of fundamental error.”).

To qualify as fundamental and therefore “justify not imposing 

the contemporaneous objection rule, ‘the error must reach down 

into the validity of the trial itself to the extent that a verdict of 

guilty could not have been obtained without the assistance of the 

alleged error.’” Delva, 575 So. 2d at 644–45 (quoting Brown v. 

State, 124 So. 2d 481 (Fla. 1960)).

With regard to an omitted element in a jury instruction, 

“fundamental error occurs only when the omission is pertinent or 

material to what the jury must consider in order to convict.” Delva, 

575 So. 2d at 645 (quoting Steward v. State, 420 So. 2d 862, 863 

(Fla. 1982)). Hence, “[f]ailing to instruct on an element of the crime 
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over which the record reflects there was no dispute is not 

fundamental error . . . .” Id. For example, if the instruction fails to 

inform the jury that the defendant must have actual knowledge of 

contraband, but if the defendant solely argues that he did not 

possess the contraband, then no fundamental error occurs. Id.

As to a misstated element in a jury instruction, the same 

principle applies. If the jury instruction incorrectly defines an 

element in a manner that makes it easier for the State to obtain a 

conviction, no fundamental error occurs if the defendant does not 

dispute that element at trial. See Reed, 837 So. 2d at 370.

Applying this standard to Nava’s trial, no fundamental error 

occurred. First, the entire case proceeded on the premise that the 

requirement of section 943.0435(4)(a) (failure to report a change in 

residence) was the one that Nava violated. The evidence 

established such a violation. Just as important, Nava himself 

defended the case as if change of address had been charged. Nava 

claimed in his opening statement that he “didn’t change his 

address.” He moved for judgment of acquittal on the ground that 

the State failed to prove that he “changed his address and did not 

update that address within 48 hours.” He argued in closing that he 

did not “change his address.” In fact, the crime argued at trial, by 

the State and by Nava, was consistent with the jury instructions. 

Even though these instructions were not consistent with the 

specific subparagraph charged in the information, they did 

accurately set forth the elements of the crime the parties argued 

at trial.

Moreover, Nava’s theory at trial was that he never changed 

his residence at all. This defense would have applied whether Nava 

had been charged with failing to report a change in residence or 

with failing to report after vacating and not establishing a new 

one. The fact that his defense would not have changed if either 

offense had been charged shows a lack of prejudice from the 

instruction error.

Second, Nava only disputed whether he was required to 

report—he never disputed where he was required to report. 

Therefore, the reporting location is immaterial for the purposes of 

our fundamental error review. Cf. Battle v. State, 911 So. 2d 85, 89 
7

(Fla. 2005) (“[A] dispute does not arise when mistaken identity is 

the sole defense and the facts of the crime are conceded by the 

defendant.” (citing Delva, 575 So. 2d at 645)).

We note that, had Nava objected to the language of the 

charging document, the State could have amended the 

information, even midtrial, without prejudicing Nava’s ability to 

mount his defense in this case—that is, he never left the original 

residence. See Thach v. State, 342 So. 3d 620, 623–24 (Fla. 2022) 

(holding that the State can amend the information during trial 

unless the defendant makes an individualized showing of prejudice 

to his substantial rights). To find fundamental error in such a 

scenario would only encourage “hip pocket appeals.” See DeFreitas 

v. State, 701 So. 2d 593, 603 (Fla. 4th DCA 1997) (Gunther, J., 

concurring in result only):

To allow broad direct review of a criminal trial on the 

basis of fundamental error supplies no motivation 

whatsoever to a defense attorney to object when various 

errors occur throughout a trial. To the contrary, a defense 

attorney might well be motivated to not object to the 

errors as they occur and then if the verdict is not to his or 

her client's favor, he has a “hip-pocket” appeal because 

the defense attorney can argue that so many unobjectedto errors occurred during trial that the errors magically 

transformed into fundamental error on direct appeal.

III

Appellate courts should find fundamental error in only the 

rarest of cases. See Figueroa-Sanabria v. State, 366 So. 3d 1035, 

1055 (Fla. 2023) (“Fundamental errors are few and rare.” (citing

Smith v. State, 521 So. 2d 106, 108 (Fla. 1988))); see also Sheppard 

v. State, 151 So. 3d 1154, 1166 (Fla. 2014) (“The principle [of 

fundamental error] is applied only in rare cases[.]”); F.B. v. State, 

852 So. 2d 226, 229–30 (Fla. 2003) (“[R]arely will an error be 

deemed fundamental . . . .”). This is not one of them. The evidence 

established a violation of section 943.0435(4), the jury was 

instructed on the elements of a violation of section 943.0435(4), 

and Nava argued the case as if section 943.0435(4)(a) had been 

charged. Moreover, to the extent that the instructions indicated a 
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different reporting location than set forth in section 943.0435(4)(a), 

Nava did not dispute below the erroneous or omitted element. 

Accordingly, we affirm.

AFFIRMED.

B.L. THOMAS and LONG, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Jessica J. Yeary, Public Defender, and Tyler Kemper Payne, 

Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody Attorney General, and Virginia Harris, Assistant 

Attorney General, Tallahassee, for Appellee.