S.J., A Child, Appellant, v. STATE (2002)

District Court of Appeal of Florida,Fifth District.

S.J., A Child, Appellant, v. STATE of Florida, Appellee.

No. 5D02-697.

Decided: December 20, 2002

James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant. Richard E. Doran, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

S.J., a child, was charged with battery upon a law enforcement officer. During the adjudicatory hearing, the trial judge found the proof insufficient to support that charge, but found it sufficient to support guilt of the uncharged crime of resisting an officer with violence and entered an order of delinquency. Apparently the court believed that the crime of resisting was a lesser included offense of the original charge. See e.g. Lee v. State, 779 So.2d 607, 608 (Fla. 2d DCA 2001).

The conviction of a crime not charged constitutes fundamental error and we vacate the order of delinquency. A trial judge has no authority to issue an order amending a charge. Snipes v. State, 733 So.2d 1000 (Fla.1999).

ORDER VACATED.

PER CURIAM.

THOMPSON, C.J., PETERSON and PALMER, JJ., concur.

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