Lemos v. State
Lemos appealed her conviction for accessory after the fact to first-degree murder, arguing the State's oral 'amendment' of the grand jury indictment (via a fictional stipulated lesser-included offense) deprived the trial court of subject matter jurisdiction. The Fifth DCA agreed the oral amendment was legally impermissible but held that such a defect implicates due process, not subject matter jurisdiction, and that Lemos waived any due process objection by actively joining the State in urging the trial court to accept the procedure and by expressly waiving 'any concerns or irregularities as to the form of the charging document' in her written plea agreement. The court affirmed the conviction and sentence and certified conflict with the First District's Akins v. State to the extent Akins held that an improperly amended indictment strips the trial court of subject matter jurisdiction.
Key facts
- Lemos was convicted in trial court of accessory after the fact to first-degree murder after the State orally 'amended' the grand jury indictment to charge a lesser-included offense through a fictional stipulated procedure.
- Lemos appealed arguing the oral amendment deprived the trial court of subject matter jurisdiction, but she had actively joined the State in urging the trial court to accept the procedure and expressly waived 'any concerns or irregularities as to the form of the charging document' in her written plea agreement.
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Why it matters
This opinion resolves an important distinction between subject-matter-jurisdiction defects (which can never be waived) and due-process defects in charging instruments (which can be waived), directly affecting how… — full analysis with a trial
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