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March 20, 2026 Get Citation Alerts Download PDF Add Note

Rene Woodall Lemos v. State of Florida

District Court of Appeal of Florida

• Citations: None known

• Docket Number: 5D2024-2438

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (32.9K)

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Combined Opinion

FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA

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Case No. 5D2024-2438
LT Case No. 05-2023-CF-45896-B

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RENE WOODALL LEMOS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

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On appeal from the Circuit Court for Brevard County.
Aaron J. Peacock, Acting Circuit Judge.

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

James Uthmeier, Attorney General, Tallahassee, and Kristen L.
Davenport, Assistant Attorney General, Daytona Beach, for
Appellee.

March 20, 2026

SOUD, J.

Appellant Rene Lemos appeals her conviction and 18-year
prison sentence for accessory after the fact to the first degree
murder of Nicholas Mitchell. She contends that the State’s
purported oral amendment of count I of the indictment by which
she was charged was fundamental error depriving the trial court
of subject matter jurisdiction and mandating reversal. 1 We have
jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App. P.
9.030(b)(1)(A).

While the State’s intended oral amendment of the grand jury’s
indictment is plainly impermissible under settled law, we affirm
because Lemos waived any due process objection to this patently
defective process by joining the State in urging the trial court to
accept the procedure to facilitate a favorable plea agreement.
Lemos cannot now contest that in which she willingly participated.

I.

Mitchell was shot to death in Brevard County, Florida. A few
days later, his white BMW was stopped after a high-speed chase
in Alabama that resulted in a crash. The BMW was driven by
Robert Lanning. Lemos arrived at the crash scene shortly after.
Ultimately, the grand jury returned its indictment charging
Lemos, along with her co-defendant Lanning, with four crimes,
including first degree felony murder.

The State and Lemos, who had no prior felony convictions,
reached a plea agreement by which Lemos would enter a plea to
accessory after the fact to first degree murder. Lemos’s agreement
provided a cap of 18 years in prison and up to life on probation.

At the plea hearing, the State announced its intention to
orally amend the indictment to bring the accessory charge. When
the trial judge expressed concern about the State’s ability to
amend the indictment, Lemos’s counsel stated, “[w]hat we would
like to do is to consider the charge of accessory after the fact as a
stipulated lesser included offense to” the first degree murder
charged in count I of the indictment. The prosecutor described the
“unusual problem” of effectuating the plea agreement and said,
“Okay. So, we can do that. I’ll pretend that accessory after the fact
is a lesser to murder one. We all know it’s not. But that’s—we can

1 Lemos also argues the trial court erred in declining her
request for a downward departure sentence. We affirm the trial
court’s decision in this regard without further comment.

2
do it that way.” Based on this legal fiction, the prosecutor
announced a supposed oral amendment to count I of the
indictment to charge accessory after the fact to first degree murder
and dismissal of counts II–IV.

Importantly, defense counsel and Lemos, on her own behalf
during the plea colloquy, affirmatively participated in the process
and expressly agreed to waive any defense or procedural defects.
Pertinent here, the written plea agreement reflected that Lemos
would “plea to one Count only: Accessory after the Fact to 1st
Degree Murder in violation of Florida Statutes Section 782.04 and
777.03. Said crime is a Life Felony . . . . [T]he Defendant will waive
forever any concerns or irregularities as to the form of the charging
document.”

The trial court relented, accepted the plea, and, after a
sentencing hearing, adjudged Lemos guilty of accessory after the
fact to first degree murder and sentenced her to 18 years in prison,
the cap allowed by the plea agreement.

Lemos’s appeal followed.

II.

Lemos argues that the State was without legal prerogative to
amend the grand jury’s indictment “despite [her] stipulation.” And
when it did so, the trial court was thereafter without subject
matter jurisdiction to adjudicate Lemos guilty and sentence her for
accessory after the fact, an uncharged crime. Claiming
fundamental error, she posits her convictions and sentence must
be vacated.

While Lemos is correct that the State’s attempt to amend the
indictment was impermissible, she stretches her argument too far
in suggesting that her conviction and sentence must be reversed
because the purported amendment deprived the trial court of its
subject matter jurisdiction. Lemos actively participated in the
process to facilitate a favorable plea agreement. And while this in
no way legitimizes attempting to amend the indictment—which
the law flatly forbids—she has thereby waived any due process
defect.

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A.

We first address that which is readily known and long
established in law. The endeavor to orally amend the indictment
was flawed at its inception. Once returned by a grand jury, an
indictment may not be amended to charge an additional, similar,
or different offense—not by the State, a trial judge, or even the
grand jury that returned the indictment. See Smith v. State, 424
So. 2d 726, 729 (Fla. 1982); 2 see also Akins v. State, 691 So. 2d 587,
588 (Fla. 1st DCA 1997) (“[A]n indictment, unlike an information,
cannot be amended, not even by a grand jury, to charge a different,
similar, or new offense.” (citing Smith, 424 So. 2d at 729)). Only an
amendment to form is permitted—that is to say, an “indictment
may be amended only to correct a defect, error, or omission in a
caption or to eliminate surplusage.” See Johnson v. State, 969 So.
2d 938, 953 (Fla. 2007) (citing Fla. R. Crim. P. 3.140(c)(1), (i)–(j)).

Here, Lemos stood charged by indictment with four crimes,
including first degree felony murder (count I). The indictment did
not charge her with accessory after the fact to first degree murder.
And the State’s endeavor to amend the indictment based upon the
“pretend[ed]” legal fiction that accessory after the fact would serve
as a lesser-included offense to the murder charge is impermissible
under Florida law. This remains so even though Lemos joined in
the attempted amendment to facilitate a favorable plea agreement.

It is of no moment that the State sought to address what it
believed to be an “unusual problem.” If the State desired to present
a plea agreement to the trial court for its consideration, that’s the
State’s prerogative. But it must follow Florida law in how it
proceeds to its chosen end. To properly effectuate their plea
agreement, and preserve Lemos’s due process rights, the State was
required to either (a) go back to the grand jury and seek a second

2 As Smith makes clear, a grand jury can charge an additional,

similar, or different offense by filing a second indictment, even
while a prior indictment is pending. “[T]he process is significantly
different. Before filing the second indictment, the grand jury must
independently evaluate the case. This requirement ensures that
the grand jury itself finds the filing of additional or different
charges appropriate.” Smith, 424 So. 2d at 729.

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or superseding indictment, see Smith, 424 So. 2d at 729, or (b) more
plausibly, file an information charging the crime to which Lemos
was to plead, see Johnson, 969 So. 2d at 953 (“[T]he grand jury and
state attorney have concurrent authority to charge noncapital
crimes . . . . [T]he State’s method of charging robbery in this case
is permissible because it concerned a noncapital crime . . . . The
state attorney’s concurrent authority permitted charging the count
by information.”).

B.

But does this flawed approach deprive the trial court of its
subject matter jurisdiction, as Lemos suggests, such that vacating
Lemos’s conviction and sentence is required? It does not. Here, the
issue is not one of “jurisdiction” but one of due process. And as with
most rights, a defendant such as Lemos can waive a defect in the
charging instrument, even one reaching constitutional dimension.
See Colson v. State, 717 So. 2d 554, 556 (Fla. 4th DCA 1998). Lemos
did just that by actively joining in the request that the trial court
accept an amendment to the indictment by which she was charged.

1.

Florida grants to the circuit courts subject matter jurisdiction
over “all felonies.” § 26.012(2)(d), Fla. Stat. (2023); see also
Carbajal v. State, 75 So. 3d 258, 262 (Fla. 2011) (citing McLean v.
State, 2 So. 5, 5 (Fla. 1887)). “Subject matter jurisdiction” means
“the ‘[p]ower of a particular court to hear the type of case that is
then before it.’” Carbajal, 75 So. 3d at 262 (citing Fla. Star v.
B.J.F., 530 So. 2d 286, 288 (Fla. 1988) (quoting Black’s Law
Dictionary 767 (5th ed. 1979))).

A circuit court’s subject matter jurisdiction is invoked in a
felony case by the filing of an extant information, indictment, or
presentment by the State. See id.; see also Art. I, § 15, Fla. Const.
Thus, the trial court’s subject matter jurisdiction was invoked in
the State’s case against Lemos by the filing of the indictment
below.

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2.

While attempting to amend the indictment was plainly
improper, it did not, contrary to Lemos’s argument, divest the
court of its subject matter jurisdiction—that is to say, the “[p]ower
. . . to hear the [felony] case that is then before it.” Carbajal, 75 So.
3d at 262. Rather, the United States Supreme Court has made
clear that the matter is properly viewed through the lens of one’s
constitutional right to due process. See Thornhill v. Alabama, 310
U.S. 88, 96 (1940) (“Conviction upon a charge not made would be
sheer denial of due process.” (quoting De Jonge v. Oregon, 299 U.S.
353, 362 (1937))).

More than 60 years after De Jonge and Thornhill, the Court
further clarified the jurisdictional concern. See United States v.
Cotton, 535 U.S. 625 (2002). There, the Court rejected the notion
that a defective indictment was a “‘jurisdictional’ defect” requiring
the vacating of the underlying sentences. See id. at 629–31. The
Court noted such a view found its origin in Ex parte Bain, 121 U.S.
1 (1887), where an indictment charging Bain with certain crimes
was amended by the trial court to remove superfluous language.
See id. at 629–30. Bain ultimately concluded “the jurisdiction of
the offence [was] gone, and the court [had] no right to proceed any
further in the progress of the case for want of an indictment.” See
id. at 629 (alteration in original). The Cotton Court rejected Bain’s
“elastic concept of jurisdiction” in favor of what that term “means
today, i.e., ‘the courts’ statutory or constitutional power to
adjudicate the case.’” See id. at 630 (emphasis in original) (citation
omitted). Noting that “[p]ost-Bain cases confirm that defects in an
indictment do not deprive a court of its power to adjudicate a case
. . . . [i]nsofar as it held that a defective indictment deprives a court
of jurisdiction, Bain is overruled.” Id. at 630–31.

Against this backdrop, it is apparent that a trial court does
not lose subject matter jurisdiction when the State improperly
endeavors to amend an indictment. Rather, proceeding in such
manner would be an improper exercise of the trial court’s subject
matter jurisdiction that, if not waived by a defendant, would be
violative of due process. See Jaimes v. State, 51 So. 3d 445, 448
(Fla. 2010) (first citing Thornhill; then citing Price v. State, 995 So.
2d 401, 404 (Fla. 2008)).

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3.

But here, by affirmatively joining in the State’s endeavor to
amend the grand jury indictment in order to procure a favorable
plea agreement, Lemos has waived any due process irregularity.
Indeed, in the plea agreement Lemos expressly “waive[d] forever
any concerns or irregularities as to the form of the charging
document.” That same agreement also set forth the charge to
which Lemos was to plead—“Accessory after the Fact to 1st Degree
Murder in violation of Florida Statutes Section 782.04 and 777.03.
Said crime is a Life Felony.”

Unlike subject matter jurisdiction, which “involves a court’s
power to hear a case [and] can never be forfeited or waived,” see
Cotton, 535 U.S. at 630, defendants “may waive constitutional
rights,” Nipper v. State, 398 So. 3d 600, 610 (Fla. 1st DCA 2024)
(quoting Blair v. State, 698 So. 2d 1210, 1213 (Fla. 1997)),
including the right to due process. Of course, a waiver is the
knowing, voluntary, and intelligent relinquishment or
abandonment of a known right or privilege. See Nipper, 398 So. 3d
at 610 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); see also
Tucker v. State, 559 So. 2d 218, 219 (Fla. 1990). And as the
Eleventh Circuit has concluded, the “right to be charged by a grand
jury is a personal right of the defendant and does not go to the
[trial] court’s subject matter jurisdiction because it may be
waived.” United States v. Brown, 752 F.3d 1344, 1349 (11th Cir.
2014) (citation omitted).

And the record before us makes clear that Lemos, through
counsel and on her own behalf in the plea colloquy with the trial
judge, knowingly, voluntarily, and intelligently waived all
objections to the irregular effort to amend the indictment. She
affirmatively joined the State in asking the judge to allow the
amendment so that she could enter into a favorable plea
agreement. Indeed, the desired plea agreement provided a cap of
18 years in prison on the first degree felony accessory charge
rather than a mandatory life sentence for the capital crime of first
degree murder. To that end, Lemos’s written plea agreement
specifically stated she “waive[d] forever any concerns or
irregularities as to the form of the charging document.”

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As a result, while Lemos joining the effort to orally amend the
indictment does not in any way legitimize the attempt to amend
the indictment (an endeavor that should not be repeated or
followed), it does constitute a waiver of all due process objections
to the improper procedure in this case. Lemos may not now be
heard to complain of that in which she so willingly participated—
and even encouraged the trial court to accept.

III.

Accordingly, we AFFIRM Lemos’s conviction and sentence for
the crime of accessory after the fact to the first degree felony
murder of Nicholas Mitchell and the resulting 18-year prison
sentence.

We recognize that our decision here conflicts with the First
District’s decision in Akins. While we agree with the First District
that “an indictment cannot be amended by stipulation of the
parties,” we do not agree with that court’s conclusion that such an
attempted amendment strips the trial court of subject matter
jurisdiction. Akins, 691 So. 2d at 589. As a result, we CERTIFY
CONFLICT with Akins v. State, 691 So. 2d 587 (Fla. 1st DCA 1997).

It is so ordered.

EDWARDS and HARRIS, 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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