NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED STATE OF FLORIDA v. <<

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District Court of Appeal of Florida, Fifth District.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED STATE OF FLORIDA, Appellant/Cross–Appellee, v.

Case Nos. 5D12–178

Decided: October 18, 2013

Pamela Jo Bondi, Attorney General, Tallahassee, Lori N. Hagan and Pamela J. Koller, Assistant Attorneys General, Daytona Beach, for Appellant/Cross–Appellee. Terrence E. Kehoe of Law Office of Terrence E. Kehoe, Orlando, for Appellee/Cross–Appellant.

The State challenges the departure sentence after Appellee was convicted of aggravated assault with a firearm.   Appellee commendably concedes error on this point but asserts by cross-appeal that the court gave erroneous jury instructions that amounted to fundamental error, necessitating a new trial.   We agree with Appellee and reverse and remand for a new trial.

The aggravated assault instruction was fundamentally erroneous because it was based on a theory not charged in the information.  Grau v. State, 101 So.3d 922 (Fla. 5th DCA 2012);  Fuentes v. State, 730 So.2d 366 (Fla. 4th DCA 1999).   Because of our conclusion on this issue, it is not necessary to address the State's argument that Appellee invited error in the self-defense instruction.

REVERSED AND REMANDED.

TORPY, C.J., GRIFFIN and WALLIS, JJ., concur.

PER CURIAM.

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