Fraser v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D2024-2317
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ENOCH NATHANIEL FRASER III,

Appellant,

v.

STATE OF FLORIDA,

Appellee.
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On appeal from the Circuit Court for Baker County.
Phillip A. Pena, Judge.

June 10, 2026

NEFF, J.

Appellant Enoch Nathaniel Fraser III appeals his judgment
and sentence following a jury trial on multiple counts, including
two counts of tampering with a witness (Counts VII and VIII). He
raises three issues on appeal. As to issue one, we affirm his
conviction on Count VIII for tampering with witness Kim Beverly
without further discussion, as the credibility and weight of the
evidence presented through the recorded jail calls was a matter
within the exclusive province of the jury to resolve. Tibbs v. State,
397 So. 2d 1120, 1123 (Fla. 1981). We write to address two asserted
sentencing errors: whether the information’s failure to allege an
essential element of the tampering offense precluded the trial
court from imposing first-degree felony sentences on Counts VII
and VIII, and whether the written probation order improperly
included a special condition not orally pronounced at sentencing.

I. First-Degree Felony Sentences on Counts Charged as
Third-Degree Felonies

In the initial issue we address, the Appellant challenges his
sentences on Counts VII and VIII on two grounds. First, he argues
the sentences imposed exceeded the five-year statutory maximum
applicable to third-degree felonies. Second, he argues the trial
court compounded that error by retroactively elevating the degree
of his convictions from third-degree to first-degree felonies in the
written judgment after he raised the issue in a motion to correct
sentencing error. We disagree as to each ground and affirm.

A. Pertinent Facts

The Second Amended Information charged Counts VII and
VIII as third-degree felonies under section 914.22(1)(e), Florida
Statutes. The information did not allege the degree of the offense
involved in the underlying official proceeding in which the witness
tampering occurred. Both counts stated “F3/L4” indicating they
were each charged as third-degree felonies.

On the weekend prior to the start of the jury trial, defense
counsel independently identified during trial preparation that the
tampering counts might be subject to reclassification as first-
degree felonies. Defense counsel contacted the State to confirm this
understanding and also informed the Appellant. When trial
commenced the following Monday, defense counsel raised the issue
on the record before the jury was brought in or sworn. The State
agreed, noting that because Count I charged a second-degree
felony, the tampering counts would constitute first-degree felonies
under section 914.22(2)(c) and Rule 3.704, Fla. R. Crim. P. Both
parties confirmed this understanding to the trial court. The
Appellant was present throughout this discussion. The scoresheet
was revised accordingly, and the court then took a short recess to
allow defense counsel to review the revised scoresheet with the
Appellant.

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When the court went back on the record after the break, the
court conducted a colloquy with the Appellant. The Appellant was
advised that if convicted on the tampering counts as first-degree
felonies, he faced a minimum guidelines sentence of 120.6 months,
a maximum sentence of 95 years, and, if found to be a habitual
felony offender, a potential sentence of life imprisonment. The end
of the colloquy went as follows:

THE COURT: This is now, I’m being told, if you’re found
responsible, it could be a first-degree felony or would be a
first-degree felony depending on their finding, and that
that would, based on the HFO status, that you could be
sentenced to life imprisonment. Do you understand that?
MR. FRASER: Yes, sir.
THE COURT: All right. So it just sounds to me, just so
the record is clear, that it doesn’t really matter what the
offer is or what the potential sentence is, that you would
like to move forward.
MR. FRASER: If I’m found guilty, I’ll be comfortable with
never getting out. I’m not guilty, so I’m going to take my
chances on this.
THE COURT: Okay. That’s fine. I want to make sure that
we’re on the same page and that you feel comfortable with
your decision.
MR. FRASER: Yes, sir.

As is evident from the trial transcript, the Appellant confirmed his
understanding of the charges and the potential sentence if found
guilty. He then elected to proceed to trial without reservation.

At the charge conference, defense counsel requested the jury
be given an interrogatory asking it to determine the degree of the
underlying offense affected by the tampering, thereby
implementing the first-degree felony framework. No objection was
made to the jury instructions for Counts VII and VIII. The jury
returned verdicts of guilty as charged on both counts and made
special findings through the interrogatory that the tampering
involved the investigation or prosecution of both a second and
third-degree felony.

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The trial court sentenced the Appellant to ten years of
probation on Count VII and fifteen years in prison on Count VIII.
These sentences were consistent with first-degree felony
treatment under section 914.22(2)(c). The written judgment,
however, initially adjudicated the Appellant guilty of third-degree
felonies on Counts VII and VIII, consistent with the face of the
Second Amended Information. Defense counsel acknowledged the
first-degree felony classification of these counts at sentencing
without objection.

Appellant subsequently filed a motion to correct sentencing
error under Rule 3.800(b)(2), Fla. R. Crim. P., arguing the
sentences exceeded the five-year statutory maximum for third-
degree felonies. In response, the trial court denied the motion and
amended the written judgment to reflect first-degree felony
adjudications on Counts VII and VIII.

B. Analysis

At the outset, we acknowledge that the Second Amended
Information failed to allege the third element of the tampering
offense as required by section 914.22 and as reflected in the
standard jury instruction. Specifically missing from that document
is the degree of the underlying official proceeding affected by the
tampering, which determines the degree of the offense. Fla. Std.
Jury Instr. (Crim.) 21.10. This omission is not trivial. Element
three is expressly identified in the statute and the standard jury
instruction as a required element the State must prove beyond a
reasonable doubt, and the category of underlying proceeding
directly determines the level of the felony the tampering
constitutes. See, e.g., Pickett v. State, 109 So. 3d 841, 844–45 (Fla.
3d DCA 2013). As the Appellant points out, it is fundamental error
to convict a defendant of a felony that is not charged. Jaimes v.
State, 51 So. 3d 445, 451 (Fla. 2010). “An information must allege
each of the essential elements of a crime to be valid.” State v. Dye,
346 So. 2d 538, 541 (Fla. 1977). “No essential element should be
left to inference.” Id. See also Cochenet v. State, 445 So. 2d 398, 399
(Fla. 5th DCA 1984) (“As the appellant argues in his brief, the
amended information charged Cochenet entered the trailer with
the intent to commit aggravated assault; it did not allege that the
assault actually occurred. Although the fact of the assault is

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clearly alleged in another count, that count cannot be used to
supply an added element for count one.”) (emphasis in original).

Nevertheless, the specific facts of this case demonstrate that
the pre-trial colloquy constituted an effective oral amendment to
the information under Anderson v. State, 537 So. 2d 1373 (Fla.
1989). In Anderson, the Florida Supreme Court held that a
colloquy between the parties and the court can function as an oral
amendment to a charging instrument where three conditions are
met: the defendant has notice of the charge as it will actually be
tried, the defendant agrees to proceed, and the defendant suffers
no prejudice to his substantial rights. Id. at 1375-76. All three
conditions are satisfied here. Before trial began, defense counsel,
not the State, independently identified the reclassification issue,
raised it on the record, and agreed with the State that Counts VII
and VIII were properly treated as first-degree felonies. The trial
court then conducted a personal colloquy with the Appellant,
confirmed his understanding of the first-degree felony
consequences, and the Appellant personally elected to proceed to
trial on that basis. No prejudice to the Appellant’s substantial
rights resulted. Indeed, none could be claimed given that the
reclassification issue originated with his own counsel. The
conditions Anderson requires were therefore not merely satisfied
but exceeded. Under the totality of the circumstances here—
defense counsel raising the issue prior to trial, both parties
agreeing, the court personally advising the Appellant, and the
Appellant electing to proceed—no such prejudice appears. See
Thach v. State, 342 So. 3d 620, 624–25 (Fla. 2022) (holding that
any mid-trial amendment to an information that alters elements
of a charged offense must be assessed on a case-by-case basis under
the totality of the circumstances to determine whether it
prejudices the substantial rights of the defendant).

Although it is a fundamental principle of due process that a
defendant may not be convicted of a crime that has not been
charged by the state, Jaimes, 51 So. 3d at 448–49, under these
unique circumstances no fundamental error or denial of due
process occurred. Because the information was effectively
amended prior to trial, element three was part of the operative
charging framework before the jury was sworn. The Appellant was
personally, unambiguously, and repeatedly advised of the first-

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degree felony consequences before trial began, and his own counsel
shaped the Appellant’s defense in accordance with the orally
amended charges. The jury convicted him of tampering with a
witness with all elements properly before it. Further, the jury
convicted the Appellant beyond a reasonable doubt through
accurate jury instructions that tracked the orally amended
charging framework. Unlike Jaimes, where the jury returned a
specific verdict convicting the defendant of an uncharged form of
the offense based on elements never alleged in the charging
document and never the subject of a pre-trial oral amendment, the
Appellant here was not convicted of an uncharged offense. Jaimes
is therefore inapplicable.

Lastly, the Appellant argues that the trial court compounded
its error by retroactively elevating the written judgment from
third-degree to first-degree felonies in response to his Rule 3.800
motion. However, the result the trial court reached was correct. In
effect, the trial court was correcting a clerical error as both the trial
and sentencing proceedings went forward under the Appellant’s
complete understanding and acknowledgment of the charges and
potential sentence he could face. As established above, the
defective information was effectively amended orally before trial
began and with the mutual agreement of the Appellant and the
State. Accordingly, the initial written judgment reflecting third-
degree felonies was itself the error—inconsistent with everything
the parties, the court, and the jury had established throughout the
proceeding. The court merely corrected the judgment to reflect the
reality of the trial and sentencing proceedings. Palmer v. State, 300
So. 3d 1247, 1247–48 (Fla. 5th DCA 2020) (stating that judgments
must conform to jury verdicts and that trial courts retain authority
to correct clerical errors at any time).

Accordingly, we affirm.

II. Unpronounced Special Condition of Probation

In the second issue we address, the Appellant argues the trial
court erred by including in the written probation order a special
condition not orally pronounced at sentencing—specifically, that
Appellant have no contact with the victim’s family. We agree and
reverse on this narrow issue.

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A. Pertinent Facts

After trial and following a pre-sentence investigation, a
sentencing hearing was held. Following arguments from both
parties, the trial court sentenced the Appellant as follows: fifteen
years in the Department of Corrections on Count I (aggravated
battery on a pregnant female); five years in the Department of
Corrections on Count II (false imprisonment), to run consecutive
to Count I; five years in the Department of Corrections on Count V
(tampering with physical evidence), to run concurrent with Count
I; fifteen years in the Department of Corrections on Count VIII
(tampering with witness Kim Beverly), to run concurrent with
Count I; and ten years of felony probation on Count VII (tampering
with witness Amanda Jarrell), to run consecutive to the total
prison term. The misdemeanor counts—Counts III, IV, and VI—
were each resolved with credit for 245 days of time served.

At the conclusion of the sentencing hearing, the trial court
orally pronounced a single no-contact special condition of
probation. It stated that the Appellant was to have no contact with
the victim, Stacey Mamula, in person, by third party,
electronically, by email, text, social media, letter, or note. The
following exchange occurred at the sentencing hearing:

THE COURT: Ms. Mamula. No contact in person, third-
party, electronically, email, text/social media, letter, note.
Nothing in terms of contact with her. You’re to complete
a mental health evaluation, follow through with any and
all recommended treatment. You’re not to possess any
weapons or firearms. Any other no contact provisions
from -- as it relates to any other individuals related to this
case? From the State?
MR. YAZDIYA: No, Your Honor.

The court did not orally pronounce any condition restricting
contact with the victim’s family. The written probation order,
however, included pre-formatted special condition 12, which
provides that Appellant shall have no contact, direct or indirect,
with the victim or the victim’s family during the period of
supervision. Appellant subsequently raised this discrepancy in a

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motion to correct sentencing error filed pursuant to Rule
3.800(b)(2), Fla. R. Crim. P. The trial court denied the motion.

B. Analysis

It is well established that the oral pronouncement of the
sentence controls over the written order. Jackson v. State, 983 So.
2d 562, 572 (Fla. 2008) (recognizing a written order which deviates
from the oral pronouncement as a “sentencing error” subject to
Rule 3.800(b)); Clark v. State, 315 So. 3d 776, 781 (Fla. 1st DCA
2021). Where a written probation order imposes a special condition
not included in the trial court’s oral pronouncement at sentencing,
that condition must be stricken. Clark, 315 So. 3d at 781. See also
§ 948.039, Fla. Stat. (“The court shall impose the special terms and
conditions by oral pronouncement at sentencing and include the
terms and conditions in the written sentencing order.”).

Accordingly, we reverse and remand solely for the trial court
to strike the words “or the victim’s family” from special condition
12 of the written probation order so that the special condition
conforms to the oral pronouncement of no contact with the victim.

III. Conclusion

We affirm on all issues with the sole exception of the special
condition of probation. We reverse only as to the inclusion in the
written probation order of the condition of no contact with the
victim’s family, which was not orally pronounced at sentencing. We
remand with instructions to strike that language from special
condition 12 of the written probation order.

AFFIRMED, in part, REVERSED, in part, and REMANDED WITH
INSTRUCTIONS.

ROBERTS and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jessica J. Yeary, Public Defender, and Kathryn Lane, Assistant
Public Defender, Tallahassee, for Appellant.

James Uthmeier, Attorney General, and Kristie Regan, Assistant
Attorney General, Tallahassee, for Appellee.

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