Facundo v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

ALFRED FACUNDO,

Appellant

v.

STATE OF FLORIDA,

Appellee.

No. 2D2025-1709

May 22, 2026

Appeal from the Circuit Court for Manatee County; Lon S. Arend, Judge.

Matthew Raul McLain of McLain Law, P.A., Longwood, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and J. Wade Stidham,
Assistant Attorney General, Tampa, for Appellee.

GUARD, Judge.
Alfred Facundo appeals the judgment and sentence for his
kidnapping conviction because his amended information stated that he
did "attempt to" kidnap the victim when he kidnapped her. Because
there was no actual prejudice to Facundo from this surplusage, we
affirm.
I.
On August 31, 2018, the State charged Facundo with (1)
kidnapping and (2) burglary with assault or battery. On August 6, 2021,
the State filed an amended information. That information made no
changes to the kidnapping charge.
The heading in both charging documents described Count I as
"Kidnapping (Harm or Terrorize) [Fla. Stat. §] 787.01(1)(a)(3), First –
Punishable by Life Felony." The body of both alleged that Facundo, "[o]n
or about June 6, 2018, . . . did attempt to forcibly, secretly or by threat
confine, abduct or imprison [C.S.] with the intent to inflict bodily harm or
terrorize [C.S.], contrary to Section 787.01(1)(a)3, Florida Statutes."
Facundo never challenged the "attempt to" language in the trial court.
Neither charging document referred to Florida's attempt statute. Neither
charging document included the statutory language from that statute
either.
Prior to trial, the court conducted a colloquy with Facundo about
his choice to reject a plea offer. Facundo stated that he knew he could
be sentenced to life in prison if he was convicted. An attempted
kidnapping conviction of Facundo could not have resulted in a life
sentence. § 777.04(4)(c), Florida Statutes (2018).
At trial, the court gave the standard kidnapping jury instruction.
Neither party objected. Neither party referenced an attempted
kidnapping during opening or closing statements nor at any other point
during the trial. The jury found Facundo guilty of kidnapping as
charged. The court sentenced Facundo to life in prison.
Facundo appealed. This court affirmed Facundo's judgment and
sentence in Facundo v. State (Facundo I), 348 So. 3d 1125 (Fla. 2d DCA
2022). After Facundo I, Facundo petitioned for a new appeal arguing
that his appellate counsel rendered ineffective assistance by failing to
raise a fundamental error argument with respect to the additional
"attempt to" language. Facundo v. State (Facundo II), 413 So. 3d 920,

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921 (Fla. 2d DCA 2025). This court granted Facundo's petition in
Facundo II. Id. at 922. This court gave Facundo the opportunity "to
commence a new appeal as to this issue only." Id.
II.
A.
Facundo relies on Facundo II arguing that this court's decision is
law of the case and we must reverse. This court's decision in Facundo II
did not predetermine the outcome of this appeal. Instead, the court
concluded that Facundo's appellate counsel's performance undermined
its confidence in the outcome of that prior appeal. Id. at 921. The scope
of the question before this court in Facundo II did not reach resolution on
the unraised issue. If it had, there would have been no reason to grant
this appeal. Other than citing a string of cases that found fundamental
error relating to a charging document defect, Facundo II does little to
assist the resolution of this appeal.
B.
Moving beyond Facundo II, for an unobjected-to error to be
reversible, "the error must reach down into the validity of the trial itself
to the extent that a verdict of guilty could not have been obtained
without the assistance of the alleged error." Brown v. State, 124 So. 2d
481, 484 (Fla. 1960). Such an error "is equivalent to a denial of due
process." J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998). Our supreme
court has advised appellate courts to "exercise [their] discretion under
the doctrine of fundamental error very guardedly." Sanford v. Rubin, 237
So. 2d 134, 137 (Fla. 1970). Discarding the contemporaneous objection
rule takes away the trial court's opportunity to address alleged errors
and risks counsel "allowing errors in the proceedings to go unchallenged

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and later using the error to a client's tactical advantage." F.B. v. State,
852 So. 2d 226, 229 (Fla. 2003).
A deficiency in a charging document is not automatically
fundamental error. Weatherspoon v. State, 214 So. 3d 578, 584 (Fla.
2017). Our supreme court has stated that "[g]enerally the test for
granting relief based on a defect in the information is actual prejudice to
the fairness of the trial." Id. (quoting Price v. State, 995 So. 2d 401, 404
(Fla. 2008)). Actual prejudice exists where (1) an essential element is
omitted; (2) the language and statute citations are too vague to put the
defendant on sufficient notice, such that he is misled; or (3) the defects
expose the defendant to double jeopardy concerns. Felton v. State, 919
So. 2d 557, 559 (Fla. 5th DCA 2005) (citing Smartmays v. State, 901 So.
2d 278, 280 (Fla. 5th DCA 2005)). The supreme court articulated a
similar formulation in our rules. See Fla. R. Crim. P. 3.140(o) (stating
that an information is only to be dismissed when it "is so vague,
indistinct, and indefinite as to mislead the accused and embarrass him
or her in the preparation of a defense or expose the accused after
conviction or acquittal to substantial danger of a new prosecution for the
same offense").
On multiple occasions, this court has dealt with charging
documents with missing elements or language and analyzed those
charging documents for actual prejudice. See, e.g., Cowart v. State, 257
So. 3d 145, 146-48 (Fla. 2d DCA 2018) (affirming, despite describing the
State's information as an "indefensible linguistic buckshot" that charged
"a whole host of offenses," because there was no actual prejudice);
Richards v. State, 237 So. 3d 426, 431-32 (Fla. 2d DCA 2018) (reversing
where an information failed to allege the essential elements or contain a

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statutory citation matching the theory of the violation the State pursued
at trial).
This court has not dealt with a situation, like this case, where
surplusage exists in a charging document. The closest case we found
was Harris v. State, 76 So. 3d 1080 (Fla. 2d DCA 2011). In Harris, this
court reversed a robbery conviction because the charging document
alleged an attempted robbery but the evidence at trial demonstrated a
completed robbery. Id. at 1081. Unlike the charging documents in this
case, the second amended information in Harris alleged both the
"attempt to" language in the body and a citation to Florida's general
attempt statute, section 777.04, Florida Statutes (2006). Id. Also, unlike
this case, the State in Harris conceded that the defendant was convicted
of an uncharged crime and that the error was fundamental. Id. Our
opinion in Harris dealt with what was the appropriate remedy for that
error. Id. at 1082-83. This court remanded for a new trial. Id. at 1083.
Outside of our district we found only one case that considered
whether similar surplusage constituted fundamental error. See Williams
v. State, 257 So. 3d 1218 (Fla. 1st DCA 2018). In Williams, the State
charged a defendant initially with attempted armed burglary. Id. at
1218. The day before trial, the State amended its information charging a
completed armed burglary. Id. at 1219. The State changed the caption
and included the specific burglary statute, section 810.02(2), Florida
Statutes, but left the language in the body of the information unchanged
including the additional words "attempt to." Id. The jury returned a
guilty verdict as charged. Id. On appeal, the defendant argued that the
additional words in the amended information constituted fundamental
error. Id. The First District affirmed the conviction. Id. It concluded
that the charging document notified the defendant of the completed

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entrance element of the offense by (1) citing the completed burglary
statute and (2) alleging in the body of the information that he attempted
to enter or remain in the dwelling. Id. at 1220. The First District
determined that there was no double jeopardy danger because any
potential attempted burglary charge was subsumed by the completed
burglary. Id. Regarding prejudice, the court found that the defendant
knew the charge the State was pursuing, received the amended
information, addressed the completed burglary in his opening at trial,
and accepted jury instructions given for burglary at the close of trial. Id.
at 1219.
III.
The First District's approach in Williams to surplusage in a
charging document adheres to how this court has approached charging
documents with missing elements or other language. Turning to this
case, the addition of the "attempt to" language in the body of the
information did not prejudice Facundo. There was no prejudice because
(1) Facundo was on notice of the essential elements, (2) the trial evidence
supported a finding Facundo completed the crime, and (3) there is no
risk of double jeopardy.
First, Facundo had notice that he was being prosecuted for a
completed kidnapping. Starting with the probable cause affidavit, the
State alleged a completed kidnapping and cited the kidnapping statute.
The State pursued this same theory throughout. While both charging
documents included the "attempt to" language, the rest of the body
mirrors the completed kidnapping statute. Notably missing in the body
is the remainder of the attempt statutory language or a citation to the

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attempt statute.1 § 777.04. Prior to trial, the court conducted a colloquy
with Facundo. Facundo confirmed that he could be sentenced to life in
prison. That statement was only true if he was charged with kidnapping.
§ 777.04(4)(c). In jury selection, the trial court, State, and defense
counsel referenced the charge as kidnapping. Both parties' openings and
closings referred to the charge as kidnapping. The court gave the
standard jury instruction for kidnapping without objection. The verdict
returned was for kidnapping. Facundo's scoresheet noted that Count I
was for kidnapping, punishable by life.
Second, the evidence supported a completed kidnapping conviction.
Facundo chased the victim down. Facundo pounded on the victim's car
window screaming at her. She feared he would break the window and
drag her through broken glass, so she unlocked her car door. Facundo
grabbed her by the hair, dragged her to his car, and threw her in his
back seat. While Facundo disagreed with where he grabbed the victim,
he testified to screaming at her, grabbing her, and taking her to his
vehicle. He then escaped that scene, stopping to beat the victim
repeatedly. He threatened to kill her and other of her family members.
Facundo's battering of the victim ceased only when a Highway Patrol
Trooper pulled alongside his car after the trooper saw him punching her.
In that moment, the victim escaped Facundo to the Trooper's vehicle.
These facts support Facundo's conviction.
Third, there is no double jeopardy concern. The State prosecuted
Facundo for kidnapping, so any prosecution for attempted kidnapping

1 Ironically, if we were to view the amended information as charging

an attempted kidnapping, we are concerned that it would be, perhaps,
more deficient as it does not track the language from the attempt statute
or cite the attempt statute. Though, Facundo still would need to
demonstrate actual prejudice.
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out of these events would be subsumed by this conviction and barred.
See Aubuchon v. State, 110 So. 3d 55, 58 (Fla. 2d DCA 2013) ("[U]nder
section 775.021(4)(b)(2), an attempt to commit an offense is considered to
be subsumed within the completed offense because the offense of
attempt is usually a degree variant of the primary offense."); Ashman v.
State, 886 So. 2d 1079, 1081 (Fla. 5th DCA 2004) (reversing a
kidnapping conviction in one county because the defendant had been
convicted for the same conduct in another county).
Facundo knew the charge. Facundo's defense was that he did not
intend to terrorize or harm the victim. He made that argument in his
motion for judgment of acquittal, in his own testimony, and in closing
arguments. Thus, he was not misled as to the charge he faced, and he
has not suffered any identified prejudice.
IV.
This court does not take the mistake by the State lightly. Facundo
faced the loss of his liberty for the remainder of his life. Even if he
encountered a lesser sanction, issues like this should be avoided by the
State taking a moment to double-check its charging documents. But,
because the State's mistake was not contemporaneously objected to, we
can only reverse if it resulted in trial court error that "reach[ed] down
into the validity of the trial itself to the extent that a verdict of guilty
could not have been obtained without the assistance of the alleged error."
Brown, 124 So. 2d at 484. Because there was no actual prejudice, the
State's mistake in this information did not give rise to fundamental error
on the part of the court. Accordingly, we affirm.
Affirmed.

LaROSE and ROTHSTEIN-YOUAKIM, JJ., Concur.

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Opinion subject to revision before official publication.

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