Facundo v. State of Florida

── Facundo v. State of Florida ── Court: District Court of Appeal of Florida Date: May 22, 2026 Category: General 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, 2 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 unobjecte