NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

KENNETH ALTON PROCTOR, )

)

Appellant, )

)

v. ) Case No. 2D14-3118

)

STATE OF FLORIDA, )

)

Appellee. )

)

Opinion filed September 21, 2016.

Appeal from the Circuit Court for 

Hillsborough County; Samantha L. Ward, 

Judge.

Howard L. Dimmig, II, Public Defender, and

Allyn M. Giambalvo, Assistant Public 

Defender, Bartow, for Appellant.

Kenneth Alton Proctor, pro se.

Pamela Jo Bondi, Attorney General, 

Tallahassee, for Appellee.

MORRIS, Judge. 

Kenneth Proctor appeals five convictions and sentences entered after a 

jury trial. We affirm four convictions and sentences, but we reverse Proctor's conviction 

for aggravated assault with a deadly weapon and remand for the trial court to enter 
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judgment for the lesser included offense of assault on a person over sixty-five and to 

resentence Proctor accordingly.1

I. Facts

The State charged Proctor with the following offenses: (1) aggravated 

battery with a deadly weapon on a person over sixty-five, with possession of a firearm, 

committed against Proctor's father; (2) aggravated assault with a deadly weapon on a 

person over sixty-five, with possession of a firearm, also committed against his father; 

(3) aggravated assault with a deadly weapon, with discharge of a firearm, committed 

against Proctor's girlfriend; (4) grand theft of a firearm; and (5) grand theft of a motor 

vehicle. 

At trial, the father testified that his small dog woke him up in the middle of 

the night. He walked out of his bedroom and spoke to his son, who told him everything 

was okay. The father went back to bed but was woken up again. When the father 

walked into his living room, he saw his son and his son's girlfriend. Proctor was holding 

the father's pistol in his hand, and Proctor hit his father in the face with the pistol. 

Proctor told the father to sit down, threatening to hurt him. The father next observed the 

girlfriend on her knees and Proctor holding the girlfriend by the hair, pouring vodka on 

her. The father tried to leave, but Proctor hit the father a few more times, knocking him 

to the ground at least twice. The father was ultimately able to run out of the house and 

across the street. He then observed his truck speeding away, even though Proctor no 

longer had permission to drive his father's truck. The father's truck was later found on 

 

1Counsel for Proctor filed an initial brief pursuant to Anders v. California, 

386 U.S. 738 (1967). This court ordered supplemental briefing pursuant to Penson v. 

Ohio, 488 U.S. 75 (1988), and In re Anders Briefs, 581 So. 2d 149 (Fla. 1991), on the 

issues addressed in this opinion.
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the side of the road. The State introduced into evidence photographs of the father's

injuries.

The girlfriend testified that she was hanging out with Proctor in his 

bedroom having a good time. At one point, Proctor walked out, and when he walked 

back in a few minutes later, he was acting differently. He was mad and told her that he 

was done. He slapped her and put a gun to her head, saying he should just kill her. 

She was afraid that he was going to hurt her, and she begged him not to. He then went 

into the kitchen and had words with his father. When Proctor returned, he pushed her

head down onto a pillow and put the gun to her head, causing her jaw to pop. They 

struggled, and when he pulled the gun away, it fired. He then dragged her by her hair 

into the kitchen and poured vodka on her head. She heard Proctor arguing with his 

father, but she was focused on figuring out how to get of the house. Proctor dragged 

her by the arm outside to his father's truck. He was calmer at that point, so she went 

with him. As they were driving, Proctor said he should kill both of them. He headed 

towards an oncoming semi-truck, and they hit a culvert on the side of the road and 

ended up in a ditch. She grabbed the gun and exited the truck. She ran down the road, 

and Proctor caught up to her. She tossed the gun into some bushes. They walked to a 

friend's house where they talked. Proctor did not remember what happened, and when 

she told him, he started crying. They ultimately fell asleep. When the girlfriend woke 

up, she called her sister who took her to the hospital. The State introduced 

photographs of the girlfriend's injuries.
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The State also presented the testimony of the investigating officers 

regarding their observations of the victims' injuries and demeanors, the condition of the 

father's house, and the location and condition of the truck. 

The jury found Proctor guilty as charged with the exception of count one. 

Specifically, the jury found Proctor guilty of (1) battery on a person over sixty-five (the 

lesser included charge in count one); (2) aggravated assault with a deadly weapon on a 

person over sixty-five, with the jury finding that Proctor did not actually possess a 

firearm; (3) aggravated assault with a deadly weapon, with the jury finding that Proctor 

actually possessed and discharged a firearm; (4) grand theft of a firearm; and (5) grand 

theft of a motor vehicle.

Proctor was sentenced to concurrent sentences on all five counts. On 

counts one, four, and five, he was sentenced to five years in prison. On count two (the 

aggravated assault against his father), Proctor was sentenced to fifteen years with a 

three-year minimum mandatory term. On count three (the aggravated assault against 

his girlfriend), Proctor was sentenced to a twenty-year minimum mandatory term.

II. Analysis

The jury found that Proctor committed aggravated assault with a deadly 

weapon against his father, but the jury also found, under that same count, that Proctor 

did not actually possess a firearm. Proctor argues that the jury verdict on this count is a 

true inconsistent verdict because the jury found him guilty of aggravated assault with a 

deadly weapon but then found that he did not possess a firearm. He argues that the 

only weapon alleged to have been used in the offense was a firearm and that the jury's 
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finding that he did not possess a firearm negates its finding that he committed 

aggravated assault with a deadly weapon. 

In Gerald v. State, 132 So. 3d 891, 893-94 (Fla. 1st DCA 2014), the 

appellant was convicted of aggravated assault under section 784.021, Florida Statutes, 

and it was clear from the evidence that the aggravated assault was based on the 

appellant's use of a deadly weapon, i.e., a gun. Yet, the jury specifically found on the 

verdict form that the appellant "did not actually possess a firearm during the aggravated 

assault." 132 So. 3d at 892. The court held that the jury reached true inconsistent 

verdicts, which are not permitted in Florida. See id. at 893-94 (recognizing that true 

inconsistent verdicts are the one exception to the rule allowing inconsistent verdicts); 

see also Brown v. State, 959 So. 2d 218, 220 (Fla. 2007) (recognizing that "the 'true'

inconsistent verdict exception[] comes into play when verdicts against one defendant on 

legally interlocking charges are truly inconsistent" and that "true inconsistent verdicts 

are 'those in which an acquittal on one count negates a necessary element for 

conviction on another count' " (quoting State v. Powell, 674 So. 2d 731, 732-33 (Fla. 

1996))); Shavers v. State, 86 So. 3d 1218, 1221 (Fla. 2d DCA 2012) (explaining the 

difference between factually inconsistent verdicts, which are permitted in Florida, and 

legally inconsistent verdicts, which are not permitted in Florida). The court in Gerald

explained:

[A]ggravated assault can only be established if an assault 

was committed with a deadly weapon or with an intent to 

commit a felony. It is undisputed that, in this case, the only 

evidence of a deadly weapon presented at trial was the 

firearm. As such, the firearm is the only basis on which the 

deadly weapon element could be established. Thus, it is 

impossible to reconcile how the jury could find that 

[a]ppellant committed aggravated assault with a deadly 
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weapon, but also specifically find beyond a reasonable doubt 

that [a]ppellant did not possess the firearm during the 

commission of the assault.

Moreover, the jury could not have independently 

concluded that [a]ppellant committed the aggravated assault 

with an intent to commit a felony. The trial court did not 

instruct the jury on aggravated assault with an intent to 

commit a felony, pursuant to section 784.021(1)(b), nor 

could the evidence here have supported such an instruction. 

Instead, the jury was only instructed on aggravated assault 

with a deadly weapon. As such, we are left with the jury's 

finding, beyond a reasonable doubt, that [a]ppellant did not 

actually possess the firearm during the aggravated assault, 

which negates the critical element that elevates simple 

assault to aggravated assault.

Gerald, 132 So. 3d at 894; cf. State v. Carswell, 914 So. 2d 9, 12 (Fla. 4th DCA 2005) 

(holding that conviction for aggravated battery was not negated by finding that 

defendant did not possess firearm because the jury could have found aggravated 

battery on the alternative theory of "great bodily harm"). The Gerald court reversed and 

remanded for the trial court to reduce the appellant's conviction to simple assault and for 

resentencing. 132 So. 3d at 896.

In this case, it is clear from the State's evidence and argument during trial 

that the only deadly weapon alleged to have been used by Proctor during this offense 

was his father's firearm. And the jury could not have found that Proctor committed the 

assault with intent to commit a felony because the jury was not instructed on that type of 

aggravated assault. According to Gerald, Proctor's conviction on count two was 

improper because the inconsistent findings on count two result in true inconsistent 

verdicts. In this case, the firearm finding is legally interlocked with the charge of 

aggravated assault with a deadly weapon because the finding of the firearm was 

necessary to support the conviction for aggravated assault. In other words, under the 
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facts of this case, the firearm was a necessary element of the aggravated assault. Cf.

Shavers, 86 So. 3d at 1222 (holding that jury's finding that defendant did not possess a 

firearm was not legally inconsistent with jury's finding of guilt for first-degree murder 

"because the use of a firearm was not an element of" the charged murder). Thus, when 

the jury found that Proctor did not possess a firearm, it negated its finding that he was 

guilty of aggravated assault with a deadly weapon.

We recognize that in a subsequent decision, the First District in State v. 

McGhee, 174 So. 3d 470 (Fla. 1st DCA 2015), distinguished Gerald for two reasons. 

First, McGhee held that the jury's verdict of aggravated assault was not inconsistent 

with the jury's verdict that appellant did not possess a firearm because there was a 

dispute as to the nature of the deadly weapon used, i.e., whether it was actually a

firearm or something black resembling a firearm. Id. at 472. This distinction does not 

apply here because there was no dispute that the weapon used was Proctor's father's 

pistol. 

The McGhee court also distinguished Gerald on the basis that the jury in

Gerald was not given the option of the lesser included offense of simple assault, 

whereas the jury in McGhee was instructed on simple assault and did not choose that 

option. McGhee, 174 So. 3d at 472. Here, like in McGhee, the jury was given the 

option of simple assault and did not choose that option. Instead, the jury chose 

aggravated assault with a deadly weapon. The fact that the jury did not choose simple 

assault in this case could support a conclusion that the jury was not mistaken in its 

verdict on aggravated assault but simply chose to pardon Proctor on the firearm issue.
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However, on count one, the jury found Proctor guilty of the lesser included 

offense of battery on person over sixty-five even though the jury was given the option of 

finding that Proctor committed aggravated battery with a deadly weapon on a person 

over sixty-five and the State offered evidence that Proctor had hit his father with the 

gun. See State v. Williams, 10 So. 3d 1172, 1174 (Fla. 3d DCA 2009) (citing cases for 

the proposition that a firearm can be a deadly weapon for purposes of aggravated 

battery when it is used as a club, stick, or bludgeon). Thus, the jury rejected the 

evidence that Proctor hit his father with a gun, further indicating that the jury did not 

believe that Proctor used a gun in the offenses against his father and that the jury did 

not intend to find that Proctor used a deadly weapon in the assault in count two. Thus, 

this case is distinguishable from McGhee because we cannot say with confidence that 

the jury knowingly rejected the lesser included offense of simple assault but simply 

pardoned Proctor on the firearm finding necessary for the charged offense. 

The State argues that the jury may have pardoned Proctor because it 

found that the firearm he possessed was not loaded. It is true that based on the 

evidence presented by the State, an unloaded firearm would have supported a finding 

of a deadly weapon for purposes of aggravated assault with a deadly weapon. See

Williams, 10 So. 3d at 1174 (recognizing that "[i]f the firearm is . . . used to put the victim 

in fear to commit an aggravated assault or a robbery, it is a deadly weapon as a matter 

of law[,] . . . regardless of whether the firearm is loaded or capable of being fired" and 

holding that firearm was a deadly weapon for purposes of aggravated battery where 

defendant used it to strike the victim in the head). But this does not explain the 

inconsistent findings because the unloaded gun would have also supported a finding 
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that Proctor possessed a firearm. See Bentley v. State, 501 So. 2d 600, 602 (Fla. 

1987) ("[T]he state need only have proved that the weapon in Mrs. Bentley's possession 

was designed to or could be readily converted to expel a projectile [in order to support a 

minimum mandatory for possession of a firearm]. . . . Whether the gun in her 

possession was loaded or whether she had available ammunition is irrelevant."

(citations omitted)). Therefore, a finding that Proctor did not possess a firearm because 

the gun was unloaded is inconsistent with a finding that that same unloaded firearm was 

a deadly weapon.

Having concluded that the jury arrived at legally inconsistent verdicts, we

must determine whether the error is fundamental. In Gerald, the issue was preserved 

by a motion for new trial, 132 So. 3d at 892, whereas Proctor did not raise this issue 

below. Proctor argues that because the jury's specific finding that Proctor did not 

possess a firearm negates the required element for the charged offense of aggravated 

assault, the jury must have concluded that Proctor was guilty under some other 

uncharged or uninstructed theory of guilt and that the error is therefore fundamental.

We agree that the error is fundamental; it goes to the foundation of 

Proctor's conviction for aggravated assault. See Jaimes v. State, 51 So. 3d 445, 448

(Fla. 2010) ("[A] fundamental error is one that 'goes to the foundation of the case or 

goes to the merits of the cause of action.' " (quoting Sanford v. Rubin, 237 So. 2d 134, 

137 (Fla. 1970))). Because the jury found that Proctor did not possess a firearm during 

the assault, thus negating the deadly weapon element of aggravated assault, the jury 

convicted Proctor under a theory of aggravated assault that was not charged in the 

information, thereby resulting in fundamental error. See id. at 448-49 (recognizing that 
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"[i]t is a fundamental principle of due process that a defendant may not be convicted of 

a crime that has not been charged by the state" and holding that defendant's conviction 

for aggravated battery with great bodily harm violated his right to due process because 

that theory of aggravated battery was not charged in the information). True inconsistent 

verdicts are not permitted in Florida based on "the possibility of a wrongful conviction,"

Powell, 674 So. 2d at 733, and the possibility of such a wrongful conviction outweighs 

the possibility of a jury pardon. The jury was given a special interrogatory on the verdict 

form to answer the question of whether Proctor possessed a firearm in count two. The 

jury chose the option that Proctor did not possess a firearm. In light of the specific 

finding that Proctor did not possess a firearm, we cannot say with confidence that the 

jury meant to find Proctor guilty of aggravated assault under the deadly weapon theory. 

The possibility of the jury wrongfully convicting Proctor of aggravated assault outweighs 

the possibility that the jury was simply pardoning Proctor on the firearm finding.2 

III. Conclusion

We reverse Proctor's conviction for aggravated assault with a deadly 

weapon on a person over sixty-five and remand for the trial court to enter a judgment on 

 

2The State also argues that an irregular verdict must be objected to below 

in order for the issue to be preserved for appeal. See Fla. R. Crim. P. 3.570 ("No 

irregularity in the rendition or reception of a verdict may be raised unless it is raised 

before the jury is discharged. No irregularity in the recording of a verdict shall affect its 

validity unless the defendant was in fact prejudiced by the irregularity."); James v. State, 

150 So. 3d 864, 866 (Fla. 4th DCA 2014) (holding that verdict form on which word 

"firearm" was crossed out and initialed, resulting in convictions for lesser included

offenses that were not requested, was an irregular verdict that must be raised while the 

jury is still in court), review denied, 192 So. 3d 38 (Fla. 2015)). But the verdict in this 

case is not merely irregular. 
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the lesser included offense of assault on a person over sixty-five and to resentence 

Proctor accordingly. 

Affirmed in part; reversed in part; remanded.

SILBERMAN and BLACK, JJ., Concur.