Anderson v. State

• Decision Date: 31 March 2011
• Docket Number: No. 1D09–411.,1D09–411.
• Citation: 70 So.3d 611
• Parties: Montez ANDERSON, Appellant,v.STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

70 So.3d 611

Montez ANDERSON, Appellant,

v.STATE of Florida, Appellee.

No. 1D09–411.

District Court of Appeal of Florida, First District.

March 31, 2011.

Michael Ufferman, Tallahassee, for Appellant.Pamela Jo Bondi, Attorney General, Michael T. Kennett, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.PER CURIAM.

Montez Anderson, Appellant, challenges his conviction and sentence for attempted second-degree murder. We reverse and remand for a new trial because the trial court fundamentally erred in instructing the jury that intent to kill was an element of attempted manslaughter by act, which was the lesser-included offense one step removed from the crime of which Appellant was convicted. See State v. Montgomery, 39 So.3d 252, 258–60 (Fla.2010); Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009); Herring v. State, 43 So.3d 823, 824 (Fla. 1st DCA 2010).

Our reversal based on the erroneous attempted manslaughter instruction renders Appellant's remaining arguments moot. However, we will address one additional issue because it is likely to arise again at the new trial. Below, Appellant was charged with attempted first-degree murder, and he requested instructions on aggravated battery and simple battery, among other crimes, as permissive lesser-included offenses of the charged offense. The trial court denied the requested instructions. We conclude that the trial court should have instructed the jury on aggravated battery and simple battery for the reasons that follow.

In charging Appellant with attempted first-degree murder, the State made the following allegations:

On August 14, 2007, Montez Anderson and Lamonte Herring did unlawfully attempt to kill a human being, Kenneth A. Moore, by shooting with a firearm, and the attempted killing was perpetrated from or with a premeditated design or intent to effect the death of Kenneth A. Moore, and in the course of committing the attempted murder, carried and actually possessed and discharged a firearm inflicting great bodily harm, contrary to [s]ections 777.04(4)(b), 782.04(1)(a)1[,] and 775.087(1)(a)[,] Florida Statutes.

At trial, the State presented evidence from which the jury could conclude that Appellant shot at the victim, causing a gunshot wound.

Because the applicability of a permissive lesser-included offense is a purely legal issue, our review is de novo. See Williams v. State, 957 So.2d 595, 598 (Fla.2007). A necessarily lesser-included offense is one for which the elements are always subsumed by the elements of the greater offense. Carle v. State, 983 So.2d 693, 695 (Fla. 1st DCA 2008). In contrast, a permissive lesser-included offense is one that may or may not be applicable, depending on the charging document and the evidence presented. Amado v. State, 585 So.2d 282, 282 (Fla.1991). The Florida Supreme Court has explained that a permissive lesser-included offense exists “when ‘the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been.’ ” Williams, 957 So.2d at 598 (citations omitted) (alterations in original). If this condition is met and the evidence adduced at trial establishes the elements of the lesser-included offense, then the trial court must instruct the jury on that offense upon request. Khianthalat v. State, 974 So.2d 359, 360 (Fla.2008).

Aggravated battery, the first requested lesser-included offense, is statutorily defined as follows:

(1)(a) A person commits aggravated battery who, in committing battery:

1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or

2. Uses a deadly weapon.

§ 784.045, Fla. Stat. (2007). Here, the facts alleged in the information directly supported the elements of aggravated battery by stating that Appellant inflicted great bodily harm with a firearm while intending to cause the victim's death. State v. Johnson, 601...