Jones v. State
| Decision Date | 04 April 1978 |
| Docket Number | No. 77-911,77-911 |
| Citation | 358 So.2d 37 |
| Parties | Charlie JONES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, App. Div., and
William H. Larkins, Legal Intern, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant seeks reversal of a judgment of conviction and sentence based upon a jury verdict finding him guilty of aggravated assault. Appellant's main contention is that he was convicted of a crime with which he was not charged in the information which alleged an aggravated battery by stating that appellant did:
". . . unlawfully commit a battery upon Arthur Smith and in commission of said battery, did use a deadly weapon, to wit: a knife, in violation of Section 784.045(1)(b), Florida Statutes (1975)."
We agree that aggravated assault is not a necessarily included offense to a charge of aggravated battery. Under Brown v. State, 206 So.2d 377 (Fla.1968) it is at best a "category four" included offense which requires the necessary allegata and probata before a jury instruction on aggravated assault would be proper. The giving of such instruction, as was done in the case sub judice, would constitute reversible error unless appellant is estopped from raising such error by having waived his right to do so through his actions in the trial court. See McPhee v. State, 254 So.2d 406 (Fla. 1st DCA 1971); see also, Causey v. State, 307 So.2d 197 (Fla. 2d DCA 1975).
For reasons unknown to us, appellant specifically requested that the record of the charge conference not be transcribed. We are, therefore, unable to determine whether or not appellant requested a charge on aggravated assault. We are aware, however, that appellant made no objection to the court's giving of such charge and, in fact, in his final argument urged the jury to consider aggravated assault as one of the lesser included offenses. Neither did appellant assign the giving of such charge as error in his motion for a new trial or his assignments of error filed with the lower court. As Judge Wigginton stated in McPhee, supra:
"Can it be said that the acquiescence by both the state attorney and the trial court in the position taken by appellant at the trial with respect to the law applicable to the case constituted such fundamental error as to render the jury's verdict and the court's judgment thereon void and of no effect?"
We think not, where such error was induced by the appellant.
Estoppel has a long history of applicability in varied factual situations. The principle is embodied in the interpretations of F.A.R. 6.7(g) which precludes one from claiming reversible error when the trial court's ruling is accepted without objection. 1
In McPhee, supra, appellant was estopped from claiming reversible error where appellant erroneously induced the court into charging the jury on possession of an hallucinogenic drug which was not a lesser included offense of the information charging the appellant with sale of an hallucinogenic drug. On remand from the Supreme Court, the appellant in Rayner v. State, 286 So.2d 604 (Fla. 2d DCA 1973) failed to object to the court's failure to instruct on any lesser included offenses (in fact, requested the court...
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Ray v. State
...So.2d 525 (Fla.4th DCA 1979), cert. denied, 381 So.2d 767 (Fla.1980); Thompson v. State, 368 So.2d 670 (Fla.3d DCA 1979); Jones v. State, 358 So.2d 37 (Fla.4th DCA), cert. denied, 364 So.2d 887 (Fla.1978); McPhee v. State, 254 So.2d 406 (Fla.1st DCA 1971). These cases have supported convict......
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Smith v. State
...2d DCA 1979); Lumia v. State, 372 So.2d 525 (Fla. 4th DCA 1979); Thompson v. State, 368 So.2d 670 (Fla. 3d DCA 1979); Jones v. State, 358 So.2d 37 (Fla. 4th DCA 1978), cert. denied, 364 So.2d 887 (Fla.1978); Smith v. State, 344 So.2d 905 (Fla. 3d DCA 1977), cert. denied, 353 So.2d 678 (Fla.......
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Carter v. State
...(Fla.3d DCA 1979); Ray v. State, 374 So.2d 1002 (Fla.2d DCA 1979); Lumia v. State, 372 So.2d 525 (Fla.4th DCA 1979); and Jones v. State, 358 So.2d 37 (Fla.4th DCA 1978), cert. denied, 364 So.2d 887 The appellant, therefore, must rely on the doctrine of fundamental error if he is to prevail ......
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Salas v. State
...offense only, if at all, where the information charges the elements of both and the facts necessary to support both. See Jones v. State, 358 So.2d 37 (Fla. 4th DCA), cert. denied, 364 So.2d 887 (Fla.1978). Our review of Count VI of the information reveals that it alleged neither all of the ......