Stokes v. State, 4D99-3042.
Decision Date | 13 December 2000 |
Docket Number | No. 4D99-3042.,4D99-3042. |
Citation | 773 So.2d 1239 |
Parties | Anthony STOKES, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Sophia Letts, Assistant Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
The Defendant appeals his convictions for armed burglary of a conveyance and aggravated assault. We affirm the armed burglary conviction, but reverse the aggravated assault conviction and remand.
After the evidence had been presented, the defense moved to dismiss the aggravated battery charge. The trial court, concluding the evidence was insufficient to establish aggravated battery, reduced the charge to aggravated assault over the defense's objection. The aggravated assault charge was submitted to the jury, which found him guilty.
On appeal, the Defendant argues the trial court erred in reducing the aggravated battery charge to aggravated assault, because aggravated assault is not a lesser included offense of aggravated battery and the information failed to allege the elements and facts to support aggravated assault. We agree.
"It is a fundamental right of a person called upon to respond to criminal charges to be notified by the accusatory pleading of all offenses for which he may be convicted in the proceeding." Payne v. State, 275 So.2d 261, 262 (Fla. 4th DCA 1973). "Nonetheless, by procedural rule and case construction thereof a defendant under a criminal charge may be convicted of any crime which is `necessarily included' in the offense charged or which is included within the allegations of the accusatory pleading and shown by the proofs." Id.
"Aggravated assault is not a necessarily lesser included offense of aggravated battery and it can be considered an included offense only, if at all, where the information charges the elements of both and the facts necessary to support both." Salas v. State, 591 So.2d 257, 258 (Fla. 4th DCA 1991); see Moody v. State...
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Negron v. State, 4D04-4838.
...is imminent." § 784.011(1), Fla. Stat. An aggravated assault has different elements than an aggravated battery. See Stokes v. State, 773 So.2d 1239 (Fla. 4th DCA 2000). In order for aggravated assault to be a lesser included offense of aggravated battery, the information must charge the ele......
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Wilburn v. State, 2D01-3712.
...battery with a firearm. Aggravated assault is not a necessarily lesser included offense of aggravated battery. Stokes v. State, 773 So.2d 1239 (Fla. 4th DCA 2000). "`[I]t can be considered an included offense only, if at all, where the information charges the elements of both and the facts ......
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