Ross v. State

In this direct criminal appeal, appellant claims that the trial court committed fundamental error by instructing the jury that it could convict appellant of lewd or lascivious battery by finding sexual penetration or union when the information alleged only sexual penetration. In Eaton v. State, 908 So.2d 1164 (Fla. 1st DCA 2005), we held that the trial court committed fundamental error by instructing the jury on the uncharged alternative theory of sexual union because it was impossible to determine from the jury’s general verdict whether the defendant was convicted based on the charged theory…