Jury's Verdict Based Not on Elements That Were Never at Issue
In State v. Weaver, 957 So. 2d 586 (Fla. 2007), the record demonstrated--as the Second District had recognized--that the State never argued at trial that Weaver had caused great bodily harm to the police officer, nor had any evidence been presented regarding the victim's injuries. See id. at 589.
The Court concluded that because the uncharged version of the offense was never at issue, it could be assumed that the jury's general verdict of guilty was not based on the uncharged theory. See id.
In such cases, we explained, "We are confident that . . . the jury's verdict is based not on elements that were never at issue, but on the elements on which the State based its arguments, and which the defendant contested at trial." Id.
For that reason, we held that the faulty instruction in Weaver did not rise to the level of fundamental error. See id.