Morrison v. State, 71--1150
| Decision Date | 14 March 1972 |
| Docket Number | No. 71--1150,71--1150 |
| Citation | 259 So.2d 502 |
| Parties | David Albert MORRISON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, and Alan S. Becker, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., for appellee.
Before BARKDULL, C.J., and PEARSON and CHARLES CARROLL, JJ.
The appellant, David Albert Morrison and one William Francis Kimmons were charged by information with attempted armed robbery in violation of §§ 776.04 and 813.011 Fla.Stat., F.S.A. Morrison was convicted by a jury of the offense charged and sentenced to five years at hard labor in the state penitentiary. Appealing therefrom he contends the trial court committed error by including in the charges to the jury a charge on aggravated assault as a lesser included offense; by denying a motion to suppress identification testimony; and by denying a motion to exclude a state witness.
The evidence disclosed that the appellant and another man entered the victim's premises and confronted him with drawn guns. They directed him in another room, into which they followed. The victim's wife who was there shot at the men, wounding the one other than the appellant. The latter dragged the wounded man out to a car which was waiting and in which they were driven off by a third man. The victim fired a number of shots at the departing automobile, some of which struck the vehicle.
At conference held in the trial court on jury charges the state requested a charge on aggravated assault as a lesser included offense. The attorney for the defendant objected thereto. The trial court gave the charge. As noted, the defendant was not convicted by the jury of the lesser included offense, but of the offense of attempted robbery with which he had been charged in the information. We hold no reversible error resulted from giving the charge on the lesser included offense.
Imprimis, the inclusion of the charge was proper based on the evidence which was ample to support a finding that the defendant had assaulted the victim with a deadly weapon. Brown v. State, Fla.1968, 206 So.2d 377. While aggravated assault is not Necessarily a lesser included offense of armed robbery (such as is larceny) it will emerge as a lesser included offense where the evidence shows that the incident assault was made with a deadly weapon. Of course, if the evidence presented would not be sufficient to sustain a conviction for aggravated assault, it would not be appropriate to charge it as a lesser included offense of armed robbery, or attempted armed robbery, whether or not objection was made to such charge. Compare Goswick v. State, Fla.1962, 143 So.2d 817, which dealt with assault and Battery as a lesser included offense of aggravated assault (depending on evidence showing battery).
Moreover, if it could be said that the giving of the charge of aggravated assault as a lesser included offense was error in this case (because of defendant's objection thereto, although the charge otherwise was proper), it was harmless error and not a basis for reversal, in view of the fact that the jury found the defendant guilty of the main offense with which he was charged.
We do not consider that our holding on this point is in conflict with the decision of...
To continue reading
Request your trial
-
Johnson v. State
...the elements of the lesser offense are embodied in the charged offense and are sufficiently disclosed in the evidence. Morrison v. State, 259 So.2d 502 (Fla. 3d DCA 1972). In the instant case, the information specifically alleged that appellant intentionally shot the victim. The evidence ad......
-
Hall v. State, 71--1205
...not supported by the record. The fifth point has been decided adversely to appellant's position by this court. See Morrison v. State, Fla.App.1972, 3rd D.C.A., 259 So.2d 502. The sixth point urges that because appellant robbed several people consecutively only one robbery was committed. Thi......
-
Kilpatrick v. State, 71--1191
... ... Further, we have held no reversible error resulted from giving the charge from the lesser included offenses. Morrison, Appellant v. State of Florida, Appellee, in the District Court of Appeal of Florida, Third District, 259 So.2d 502 ... Therefore, ... ...
-
State v. Johnson
...on permissive lesser included offenses over the defendant's objection. We note that our decision is consistent with Morrison v. State, 259 So.2d 502 (Fla. 3d DCA 1972), which held that the trial court is not precluded by the defendant's objection from charging the jury on a permissive lesse......