Anderson v. State

• Decision Date: 25 May 2018
• Docket Number: No. 1D15–5433,1D15–5433
• Citation: 247 So.3d 680
• Parties: Timothy ANDERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

247 So.3d 680

Timothy ANDERSON, Appellant,

v.STATE of Florida, Appellee.

No. 1D15–5433

District Court of Appeal of Florida, First District.

May 25, 2018

Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and David Llanes and Amanda Stokes, Assistant Attorneys General, Tallahassee, for Appellee.

Per Curiam.

After a night out at a local club, Timothy Anderson's girlfriend left in her car with some friends. Anderson took off after them in his truck, driving erratically at times and eventually hitting his girlfriend's car. Anderson was convicted of aggravated assault with a deadly weapon. His sole argument on appeal is that the jury should have been instructed on the lesser-included offense of reckless driving. Because the trial court did not err by declining to give the requested instruction, we affirm.

Anderson's defense at trial was that while he was admittedly driving recklessly, he did not intentionally hit his girlfriend's car. He argues that he was entitled to a jury instruction on reckless driving as a lesser-included offense because he did not possess the intent necessary to be convicted of aggravated assault or simple assault, on which the jury was instructed. Since this issue involves a question of law based upon undisputed facts, our standard of review is de novo. Khianthalat v. State , 974 So.2d 359, 360–61 (Fla. 2008).

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." Sanders v. State , 944 So.2d 203, 206 (Fla. 2006) (alterations omitted) (quoting State v. Weller , 590 So.2d 923, 925 n.2 (Fla. 1991) ). Upon request, a trial judge is required to instruct the jury on a permissive lesser-included offense if two conditions are met: (1) the charging document alleges all the statutory elements of the lesser offense, and (2) there is some evidence presented at trial establishing each element of the requested lesser-included offense. State v. Knighton , 235 So.3d 312, 315 (Fla. 2018) (quoting Khianthalat, 974 So.2d at 361 ).

The offense of reckless driving involves driving a vehicle "in willful or wanton disregard for the safety of persons or property." § 316.192(1)(a), Fla. Stat. In this case, the information charging Anderson with aggravated assault with a deadly weapon alleged that he "did unlawfully and intentionally make an assault upon [his girlfriend] with a motor vehicle, a deadly weapon without intent to kill, contrary to Section 784.021(1)(a), Florida Statutes."

Noticeably absent from the information is an allegation that Anderson was driving the vehicle, an essential element of reckless driving. See State v. Lappin , 471 So.2d 182, 183 n.1 (Fla. 3d DCA 1985) (noting that first element of reckless driving is "1. driving a vehicle"). Anderson nevertheless contends that all the statutory elements of reckless driving are subsumed in the aggravated assault charge because it is not possible to commit aggravated assault with a motor vehicle without driving the vehicle. For support, he relies primarily on Piggott v. State , 140 So.3d 666, 669 (Fla. 4th DCA 2014), which held that reckless driving is a permissive lesser-included offense of aggravated battery with a deadly weapon when the weapon is a motor vehicle.

The information in Piggott charged the defendant with striking the victim "with a deadly weapon, to wit: a Kia Sephia four-door automobile." Id. The court concluded that the first condition of the test for a permissive lesser-included offense was met because the charging document alleged "all the statutory elements of reckless driving."¹ On rehearing, and in response to the State's post-opinion argument that the information failed to include the element of driving, the court reasoned that "our interpretation of the information, when viewed at the time of the charge conference, cannot ignore the undisputed evidence that the defendant was driving the automobile which is alleged to have been the instrument of the alleged aggravated battery with a deadly weapon upon the victim." Id. at 671 n.1.

We disagree with the analysis of Piggott and conclude that the first condition of the test for a permissive lesser-included offense is not met in this case as the facts alleged in the information are not "such that the lesser included offense cannot help but be perpetrated once the greater offense has been." Anderson v. State , 70 So.3d 611, 613 (Fla. 1st DCA 2011) (alteration omitted) (quoting Williams v. State , 957 So.2d 595, 598 (Fla. 2007) ).

It is not enough that there was undisputed evidence at trial that Anderson was driving his truck at the time of the assault. The first step in the analysis asks only whether the charging document alleges all the statutory elements of the lesser offense, without consideration of the evidence presented at trial. See Wright v. State , 983 So.2d 6, 9 (Fla. 1st DCA 2007). Therefore, in Wright , we held that a defendant convicted of grand theft auto was not entitled to an instruction on the lesser charge of trespass in a conveyance. Id. The evidence showed the defendant committed the grand theft by driving off in a BMW, but the information did not specifically allege the defendant entered the vehicle, an essential element of trespass. Id. It did not matter that the State had proven entry; the information controlled. Id.

Our decision in Wright was no outlier. In Phillips v. State , 874 So.2d 705, 706 (Fla. 1st DCA 2004), the defendant was convicted of aggravated battery with a deadly weapon, after the evidence established that he stabbed two men with a knife. On appeal, the defendant insisted the trial court should have instructed the jury on the lesser offense of improper exhibition of a deadly weapon. Id. at 707. We rejected that contention, precisely because an element of the latter offense—that the defendant "exhibited his knife ‘in a rude, careless, angry or threatening manner’ "—was not charged in the information. Id. (quoting statute). Similarly, in Stewart v. State , 790 So.2d 440, 440 (Fla. 1st DCA 2000), a defendant convicted of armed robbery argued he was entitled to an instruction on resisting a merchant. Id. We rejected that argument because, again, "[t]he elements of such offense were not specifically alleged in the information." Id.

The requirement that the elements of the lesser offense be "specifically alleged in the information" means it is not enough that the element of driving could be inferred from Anderson's charging document because driving might be the most common manner in which an assault with a motor vehicle occurs.² In State v. Von Deck , the Florida Supreme Court made clear that "Florida law is well settled that the elements of an offense cannot be established by mere inference." 607 So.2d 1388, 1389 (Fla. 1992). In Von Deck , the defendant was charged with attempted premeditated murder by shooting at the victim with a firearm. 607 So.2d at 1389. The issue was whether the State was entitled to a jury instruction on the lesser-included offense of aggravated assault where the information did not allege an essential element of the lesser offense, namely that the defendant's actions caused a well-founded fear in the victim that violence was imminent. Id. The State argued the missing element of "well-founded fear" could be inferred from the charging document because a shooting is likely to create such a fear. Id. Unpersuaded, the court explained, "While this may be true in some cases, it will not be true in all. It is possible to commit an attempted murder without also committing aggravated assault, such as where the victim remains unaware of the attempted murder until some time has elapsed after the commission." Id. The court concluded that aggravated assault was not a lesser-included offense of attempted murder as charged. Id. at 1389–90 ; see also Farley v. State , 740 So.2d 5, 7 (Fla. 1st DCA 1999) ("The State's argument that ‘[u]sing a knife to inflict bodily harm on someone is at the very least exhibiting the weapon in a rude, careless, angry or threatening manner’ is an attempt to allege the required elements by inference. This is impermissible ...."); Andrews v. State , 679 So.2d 859, 859–60 (Fla. 1st DCA 1996).

Binding precedent therefore compels us to reject the argument that the trial court should have given the reckless driving instruction. And because we find no error, we need not address the separate issue of whether the jury's decision to convict on the greater offense would render harmless any error in denying a lesser-included instruction.

We affirm the judgment below and certify conflict with Piggott v. State , 140 So.3d 666 (Fla. 4th DCA 2014).

AFFIRMED; CONFLICT CERTIFIED .

Ray and Winsor, JJ., concur; MAKAR, J., concurring in part and dissenting in part.

Makar, J., concurring in part and dissenting in part.

I concur in certifying conflict with Piggott v. State , 140 So.3d 666, 669 (Fla. 4th DCA 2014), which holds that "reckless driving is a permissive lesser included offense of aggravated battery with a deadly weapon when the alleged deadly weapon is an automobile." Piggott sets forth the better approach in deciding whether a jury instruction on a lesser-included offense requested by a defendant should be given. Although a charging document is very important in providing notice of the charge alleged, as the Sixth Amendment requires, Piggott persuasively points out that what is even more important from the defense's perspective is the actual basis of a charge at the time of the charge...