It seems self-evident that a person cannot be convicted of a non-existent offense in Florida. Nowadays (as opposed to 1692 Salem, Massachusetts)[i] if someone were arrested, tried, convicted, and sentenced for witchcraft, the conviction would be void ab initio and nullity.[ii] Obviously, witchcraft is not a real thing unless you are Harry Potter. Therefore, a conviction cannot stand for a crime that does not exist or is not “on the books.”
For the most part, Florida no longer follows the common law in terms of criminal matters. All the crimes in Florida are based on statute. If there is not a statute on the matter precisely outlining the crime, then there is no crime. For instance, Florida does not have a larceny statute.
At common law, larceny was the unlawful taking or theft of the personal property of another person or business with the intent to temporarily or permanently deprive the owner of the item without owner’s consent. It required a picking up and carrying. And the item must have value. Florida has incorporated the larceny concept into its theft statute.[iii] Nonetheless, no one in Florida can be arrested and prosecuted for larceny (because there is not a statute forbidding larceny per se).
Without exception, Florida takes the position a person cannot be convicted of a non-existent offense. See Jordan v. State, 416 So.2d 1161 (Fla. 2d DCA 1982), rehearing denied, approved, Jordan v. State, 438 So.2d 825 (Fla. 1983); State v. Sykes, 434 So.2d 325 (Fla. 1983); Achin v. State, 436 So.2d 30 (Fla. 1982), rehearing denied (1983) (“We hold that one may never be convicted of a nonexistent crime….”); and Plummer v. State, 455 So.2d 550, rehearing denied (1984).
Additionally, a person cannot agree to be convicted of and/or plead guilty or no contest to a non-existent offense in Florida. See Hoover v. State, 511 So.2d 629 (Fla. 1st DCA 1987), rehearing denied; Moore v. State, 924 So.2d 840 (Fla. 4th DCA 2006), rehearing denied; and Jordan v. State, 801 So.2d 1032 (Fla. 5th DCA 2001). In other words, a person cannot agree to plead guilty to witchcraft in exchange for a lessor sentence to say robbery. As far as the Florida Supreme Court is concerned, conviction of a non-existent criminal offense in Florida is a fundamental error (e.g., the most serious legal error that can exist). Achin, supra.[iv]
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
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[iii] See §812.014, Fla. Stat.
[iv] The Fourth District in Haliburton v. State, 7 So.3d 601, 605-06 (Fla. 4th DCA 2009) defined “fundamental error” as follows: “The ‘fundamental error’ terminology is typically used in determining whether an error can be raised for the first time on direct appeal despite the lack of an objection at trial. See Maddox, [760 So.2d at 95-96]. Nevertheless, some errors, which have also been referred to as ‘fundamental errors,’ are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So.2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006) (conviction for a non-existent crime); Pass v. State, 922 So.2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy).”