Von Deck v. State, 91-758
| Decision Date | 07 February 1992 |
| Docket Number | No. 91-758,91-758 |
| Citation | 593 So.2d 1129 |
| Parties | 17 Fla. L. Weekly D413 James VON DECK, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
James G. Kontos and Daniel S. Ciener of Law Firm of Daniel S. Ciener, Merritt Island, for appellant/cross-appellee.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellee/cross-appellant.
The criminal information in this case charges the defendant with attempted premeditated murder of a police officer in language as follows:
On the 24th day of October 1990, did then and there attempt to commit an offense prohibited by law MURDER OF A LAW ENFORCEMENT OFFICER, to then and there unlawfully kill a human being, S. HUSS, MUNICIPAL POLICE OFFICER, PALM BAY POLICE DEPARTMENT, WHILE HE WAS ENGAGED IN THE LAWFUL PERFORMANCE OF HIS DUTY, by SHOOTING AT S. HUSS WITH A FIREARM, and said killing was perpetrated by said JAMES RONALD VONDECK, from a premeditated design or intent to effect the death of said S. HUSS, and toward commission of said offense, said JAMES RONALD VONDECK did SHOOT AT S. HUSS WITH A FIREARM, TO WIT: PISTOL, contrary to Sections 777.04(1), 777.04(4)(a) and 782.04, 784.07(3), Florida Statutes,
During the charge conference at trial the defendant objected to proposed jury instructions relating to aggravated assault, arguing that aggravated assault was not a lesser included offense of the crime of attempted murder as charged in the charging document.
The defendant was found guilty of aggravated assault on a police officer with a firearm and appeals.
Under the Schedule of Lesser Included Offenses contained in the Florida Standard Jury Instructions in Criminal Cases, aggravated assault is designated as a category 2 lesser offense of first degree murder. A category 2 offense is one which "may or may not be included in the offense charged, depending on the accusatory pleading and the evidence." (Emphasis added). Thus whether aggravated assault qualifies as a category 2 lesser offense requires first examination of the information to determine whether it alleges all of the elements of the lesser offense and second, whether the evidence supports the allegation of the lesser offense. State v. Daophin, 533 So.2d 761 (Fla.1988).
Section 784.021, Fla.Stat., provides as follows:
(1) An "aggravated assault" is an assault:
(a) With a deadly weapon without intent to kill; or
(b) With an intent to commit a felony.
(2) Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in Sec. 775.082, Sec. 775.083, or Sec. 775.084.
An aggravated assault of a law enforcement officer is a second degree felony. See Sec. 784.07(2), Fla.Stat.
An "assault" is defined in section 784.011, Florida Statutes, 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 in such other person that such violence is imminent."
As the defendant points out, nowhere in the charging document is there any allegation that the act of the defendant caused a well founded fear in Officer Huss that any violence was imminent. Compare Perez v. State, 566 So.2d 881 (Fla. 3d DCA 1990) (). The State relies on Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978) wherein the Fourth District reversed a conviction and held that the defendant was entitled to an instruction on aggravated assault as a lesser offense of attempted second degree murder where the information alleged that the defendant attempted to unlawfully kill a human being and did shoot him with a firearm and the evidence established that five shots were fired at the victim which the court declared satisfied the statutory requirement of creating...
To continue reading
Request your trial
-
Reynolds v. State
...it must be specifically within the words of the greater charge. State v. Daophin, 533 So.2d 761, 762 (Fla.1988); Von Deck v. State, 593 So.2d 1129, 1130 (Fla. 5th DCA), approved, 607 So.2d 1388, 1389 (Fla.1992). For example, the state could have worded its information to charge both by sayi......
-
Calvo v. State, 92-66
...there can be no conviction for aggravated assault upon a law enforcement officer because the element of fear is missing. Von Deck v. State, 593 So.2d 1129 (Fla. 5th DCA), approved, 607 So.2d 1388 (Fla.1992). Calvo argues that there has to be something that creates fear in Wise's mind. It co......
-
Von Deck v. Evander, 93-841
...information failed to allege that the officer had been placed in fear, a necessary element of aggravated assault. See Von Deck v. State, 593 So.2d 1129 (Fla. 5th DCA), approved, 607 So.2d 1388 When this matter returned to the trial court, the state filed an amended information charging peti......
-
State v. Von Deck
...for petitioner. James G. Kontos of Daniel S. Ciener, Merritt Island, for respondent. PER CURIAM. 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. ......