Vitko v. State, s. 78-536
| Decision Date | 06 October 1978 |
| Docket Number | 78-645,Nos. 78-536,s. 78-536 |
| Citation | 363 So.2d 42 |
| Parties | Melvin Lee VITKO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
Appellant contends that the trial court erred in adjudging him guilty of aggravated assault. We agree.
On January 4, 1978, the State filed a two-count information charging appellant with attempted robbery and battery. The attempted robbery count read as follows:
(Appellant) by force, violence or assault, or putting RODDIE SMITH in fear, willfully and against the will of said RODDIE SMITH, did attempt to take money or other property from his person or custody with intent to permanently deprive the said RODDIE SMITH of said money or other property, the said RODDIE SMITH being lawfully entitled to possession of the said money or other property, to wit: lawful money of the United States of America, and during the course of the aforesaid offense, the said MELVIN LEE VITKO did Carry a deadly weapon, to wit: a knife; contrary to Chapter 812.13, and against the peace and dignity of the State of Florida. (Emphasis supplied)
After the court denied a motion to dismiss, appellant pled guilty to battery and went to trial on the attempted robbery count. At trial, the court granted appellant's motion for a judgment of acquittal as to attempted robbery and sent the case to the jury on a theory of aggravated assault. The court also instructed the jury over appellant's objection on aggravated battery, and it was that crime of which the jury found appellant guilty. However, after further consideration, the court voided the aggravated battery conviction and adjudged appellant guilty of aggravated assault, sentencing him to ninety days in prison for battery and six months to five years in prison for aggravated assault. The court also assessed costs against him. This timely appeal followed.
We believe that appellant's conviction for aggravated assault cannot stand. A defendant may not be convicted of a lesser included offense of the crime charged if the information under which he is tried does not allege all the elements of that offense. See Brown v. State, 206 So.2d 377 (Fla.1968). Here, the information did not allege all the elements of aggravated assault. An aggravated assault occurs when a person commits assault with a deadly weapon or...
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Torrence v. State
...The crime contemplates the use of a deadly weapon, i.e., that the accused assaulted the victim with a deadly weapon. Vitko v. State, 363 So.2d 42 (Fla. 2d DCA 1978). See also State v. McQuay, 403 So.2d 566 (Fla. 3d DCA 1981). An allegation that the accused "carried a firearm" is insufficien......
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Rodriquez v. State, 82-570
...Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983); the dissent in Baker v. State, 431 So.2d 263 (Fla. 5th DCA 1983); Vitko v. State, 363 So.2d 42 (Fla. 2d DCA 1978). See also State v. Gray, 435 So.2d 816 (Fla.1983); Gay v. State, 432 So.2d 602 (Fla. 2d DCA 1983).2 See also State v. Cantr......
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Akins v. State
...robbery merely requires that the defendant have carried the deadly weapon. See State v. Baker, 452 So.2d 927 (Fla.1984); Vitko v. State, 363 So.2d 42 (Fla. 2d DCA 1978); Owens v. State, 444 So.2d 951 (Fla. 2d DCA 1984). Cf. Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983), but note that......
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Blow v. State, MM-60
...firearm or deadly weapon to commit an assault in the course of committing the robbery. Thus, he contends, relying upon Vitko v. State, 363 So.2d 42 (Fla. 2d DCA 1978), the aggravated assault was not a "category four" 2 lesser included offense, because the essential elements of the aggravate......