Leon v. State, 5D14-1417 (May 6, 2016)
Defendant was convicted of multiple counts of sexual battery. The Fifth District reversed one of the counts for a new trial because the jury instructions contained fundamental error. The State charged the defendant with sexual battery via penetration; however, the Trial Court instructed the jury that they could convict based upon either penetration or “having union with” the victim. Because the instruction allowed the jury to convict upon an uncharged theory, the error required a new trial regardless of defense counsel’s failure to object.