State v. Von Deck
| Decision Date | 05 November 1992 |
| Docket Number | No. 79630,79630 |
| Citation | 607 So.2d 1388 |
| Parties | 17 Fla. L. Week. S678 STATE of Florida, Petitioner, v. James VON DECK, Respondent. |
| Court | Florida Supreme Court |
Robert A. Butterworth, Atty. Gen. and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for petitioner.
James G. Kontos of Daniel S. Ciener, Merritt Island, for respondent.
We have for review Von Deck v. State, 593 So.2d 1129 (Fla. 5th DCA 1992), based on express and direct conflict with Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978). We have jurisdiction. Art. V, Sec. 3(b)(3), Fla. Const.
James Von Deck was charged by information with attempted premeditated murder of a law enforcement officer by shooting at him with a firearm. The information makes no direct reference to any act by Von Deck creating a well founded fear that violence would be imminently inflicted on the officer. At trial, Von Deck objected to the state's requested instruction on the permissive lesser included offense of aggravated assault, arguing that all the elements of this offense were not contained in the information. Florida law specifies that an essential element of any assault, including aggravated assault on a law enforcement officer, is an act creating a well founded fear in the victim that violence is imminent. Compare Sec. 784.011, Fla.Stat. (1989) with Sec. 784.07(2), Fla.Stat. (1989) and Sec. 784.021, Fla.Stat. (1989). The objection was overruled.
Von Deck then was found guilty of aggravated assault. On appeal, the Fifth District reversed on grounds that the information did not sufficiently allege the crime. Von Deck.
The state now argues that the element of "putting in fear" can be established by inference, because a shooting is likely to create such fear. One district court case supports this position. Kimbrough. 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. Florida law is well settled that the elements of an offense cannot be established by mere inference. State v. Dye, 346 So.2d 538, 541 (Fla.1977). Moreover, we expressly have said that an instruction cannot be given on a permissive lesser included offense unless both the accusatory pleading and the evidence support the commission of that offense. Brown v. State, 206 So.2d 377, 383 (Fla.1968).
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Browning v. Sec'y, Fla. Dep't of Corr.
...evidence support the commission of that offense." Whyte v. State, 881 So. 2d 1183, 1184 (Fla. 5th DCA 2004) (citing State v. Von Deck, 607 So.2d 1388, 1389 (Fla. 1992)). A person commits aggravated battery in Florida by committing a battery and either intentionally or knowingly causing grea......
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Chambers v. State
...to reach this result. We now recede from those cases. In Mateo, instead of citing to Ray, this court cited to three cases: State v. Von Deck, 607 So.2d 1388 (Fla.1992), State v. Gray, 435 So.2d 816 (Fla.1983), and Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA Von Deck involved a convictio......
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Pena v. State, 2D01-1066.
...holding that the failure to allege an essential element of an offense in the charging document is fundamental error, see State v. Von Deck, 607 So.2d 1388 (Fla.1992); Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995); State v. Roberts, 616 So.2d 79 (Fla. 2d DCA 1993), and that such an i......
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Anderson v. State
...condition, "Florida law is well settled that the elements of an offense cannot be established by mere inference." State v. Von Deck , 607 So. 2d 1388, 1389 (Fla. 1992) (citing State v. Dye , 346 So. 2d 538, 541 (Fla. 1977) ). Von Deck is instructive. In that case, we accepted review to sett......