State v. Wilson
| Decision Date | 11 April 1973 |
| Docket Number | No. 42862,42862 |
| Parties | STATE of Florida, Petitioner, v. Herbert Wallace WILSON, Respondent. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Nelson E. Bailey, Asst. Atty. Gen., for petitioner.
Charles W. Musgrove, and Richard L. Jorandby, Public Defenders, and Edward H. Fine, Asst.Public Defender, for respondent.
By petition for certiorari, we have for review a decision of the District Court of Appeal, Fourth District, reported at 265 So.2d 411. Our jurisdiction is based upon conflict between the decision sought to be reviewed and Delaine v. State 1 and Brown v. State. 2
On June 18, 1970, a store and several customers in the store were robbed at gunpoint. The defendants, Herbert W. Wilson, was apprehended by the police shortly after the robbery and later identified in a lineup at the police station as being the robber. At trial, Wilson was convicted by a jury of three counts of robbery, adjudged guilty, and sentenced to life imprisonment on each count.
Wilson requested that the jury be instructed on the offense of assault as a lesser included offense of the charge of robbery. The trial court declined to give the requested instruction but did instruct the jury on the offense of robbery, grand larceny and petit larceny.
An appeal to the District Court of Appeal, Fourth District, resulted in a 2--1 reversal. The District Court, relying upon Brown v. State 3 found that aggravated assault, assault and battery and assault are lesser included offenses within the category of:
'Offenses which May or may not be included in the offense charged, depending on the accusatory pleading and the evidence.' 4 (Emphasis theirs)
The District Court then concluded that in the case sub judice it was reversible error not to instruct the jury as to assault.
As stated by the District Court, the test for determining whether assault, aggravated assault and assault and battery are included in the category above is as follows: 5
(Emphasis theirs)
The information here alleged that the defendant 'did, by force, violence or putting Pearl Snyder in fear, feloniously rob, steal and take away' certain personal property. Simple assault, as pointed out in the District Court's decision, is defined as 'an intentional, unlawful threat by word or act to do violence to the person of another coupled with an apparent ability to do so, and doing some act which creates a well founded fear of such violence being done.' 6 The language in the information appears to be sufficient to fall within this definition of assault. The information however, is not sufficient as regards the offenses of aggravated assault (no allegation of assault with a deadly weapon) and assault and battery (no allegation of battery).
Turning to the evidence, it is apparent that defendant held and displayed an operational pistol on the victims in such a manner as to threaten the victims with violence to their person. Thus, both the information and evidence support the finding of the District Court that assault was an offense which may be included in the offense charged and a charge based on simple assault should have been given. Because the information is not sufficient and because no instruction was requested as regards the offenses of aggravated assault and assault and battery, the District Court's holding as to these offenses was in error.
This determination, however, does not dispose of the case. As pointed out in Delaine v. State: 7
'(W)e have not foreclosed, under appropriate circumstances, the invocation of Fla.Stat. § 924.33, F.S.A., which reads:
We must, therefore, determine whether this error is harmless or reversible error. While the District Court states that it has not overlooked § 924.33, in deciding that the failure to instruct as to assault was reversible error, the District Court failed to reach its decision 'after an examination of all the appeal papers . . ..' The District Court merely stated: 8
...
To continue reading
Request your trial
-
Robinson v. United States
...with an apparent ability to do so, and doing some act which creates a well founded fear of such violence being done.'" State v. Wilson, 276 So. 2d 45, 46 (Fla. 1973) (emphasis added) (footnote omitted); see also Wilson v. State, 265 So. 2d 411, 413 (Fla. 4th DCA 1972) (citing Fla. Stnd. Cri......
-
Anthony v. United States
...that if a defendant possesses the apparent ability to accomplish the threatened injury, an assault may be found. See, e. g., State v. Wilson, 276 So.2d 45 (Fla.1973); Hudson v. State, 135 Ga.App. 739, 218 S.E.2d 905 (1975); State v. Panda, 259 Iowa 970, 146 N.W.2d 255 (Iowa 1966); Hayes v. ......
-
State v. Terry
...268 So.2d 901 (Fla.1972); State v. Anderson, 270 So.2d 353 (Fla.1972); Rayner v. State, 273 So.2d 759 (Fla.1973); State v. Wilson, 276 So.2d 45 (Fla.1973).1 Of more than one hundred rules of criminal procedure, only thirteen are completely devoid of mandatory language ('shall' or 'must'): R......
-
Marion v. State, 73--212
...So.2d 397. In our opinion the error complained of did not injuriously affect the substantial rights of the defendant. See State v. Wilson, Fla.1973, 276 So.2d 45. ...