Why You Can’t Be Convicted of a Nonexistent Crime
It is a bedrock principle of Florida law that every individual accused of a crime has a constitutional right to be informed of the exact nature and cause of the accusation against them.
Instead, the prosecutor for the State of Florida is required by Article I, Section 16 of the Florida Constitution and codified in Florida Rule of Criminal Procedure 3.140(d)(1), to allege the essential facts constituting a real, legally defined offense. But what happens when the State files charges for conduct that the Legislature never actually criminalized?
Under Florida jurisprudence, charging someone with an act that is not a crime is a fatal, fundamental error. As the law stands, a conviction based on a nonexistent offense cannot be sustained—even if the defendant knowingly entered a plea to it.
The foundational mechanics of this defense strategy are perfectly illustrated by the landmark Fifth District Court of Appeal case, Jordan v. State, 801 So. 2d 1032 (Fla. 5th DCA 2001).
In Jordan, the defendant was arrested and subsequently searched at the Orange County Jail, where deputies discovered a crack pipe containing cocaine residue on her person. The State charged her with introduction of contraband into a county detention facility under Section 951.22(1), Florida Statutes, explicitly listing the contraband as “drug paraphernalia” in the charging information. Facing these charges, the defendant entered a no-contest plea.
On appeal, the defense raised the following issue never argued to the trial court – that introduction of drug paraphernalia into a county facility is a nonexistent offense because drug paraphernalia was completely omitted from the statutory definition of “contraband” in Section 951.22(1).
The appellate court agreed and reversed the conviction outright. The Jordan court highlighted several core legal principles that dictate how statutory ambiguity and drafting omissions must be handled in Florida courts:
Courts Interpret Legislation—They Do Not Rewrite It
When a criminal statute omits essential provisions or fails to explicitly criminalize an act, judges are not at liberty to supply the deficiencies to make the statute fit the State’s preferred narrative. As the Jordan court cleanly stated: “It is not the prerogative of this court to melt this statute and recast it in a mold of our choosing.”
The Rule of Lenity and Expressio Unius
Under § 775.021(1), Fla. Stat., when criminal legislation is susceptible to more than one meaning or contains structural ambiguity, it must be strictly construed in favor of the accused.
Furthermore, under the canon of construction expressio unius est exclusio alterius (the mention of one thing implies the exclusion of another), the explicit listing of specific contraband items in a statute means that any items left off the list are legally excluded. Because the legislature omitted drug paraphernalia from the text, it did not legally intend to criminalize its introduction.
Nonexistent Crimes Invoke Fundamental Error
The State frequently argues that a defendant waives their right to challenge an issue on appeal if they fail to object in the trial court or if they voluntarily accept a plea deal. That argument does not apply to fundamental error which can be raised at any time.
Conviction of a nonexistent crime is a fundamental error. It goes to the very heart of the trial court’s jurisdiction; you cannot confer jurisdiction upon a court by agreement or plea to sustain a conviction for something that is not a crime.
In Jordan, the State attempted to salvage the conviction by arguing that the “drug paraphernalia” language was mere surplusage, and that the true contraband was the microscopic cocaine residue inside the pipe.
The appellate court rejected this argument, noting that charging documents are not tarot cards and defendants are not fortune-tellers required to mystically divine what the State actually meant. The State is bound by the specific misconduct it alleges.
This article was last updated on Friday, November 6, 2026.
