White v. State, T--111

• Decision Date: 25 July 1974
• Docket Number: No. T--111,T--111
• Citation: 299 So.2d 143
• Parties: Gregory Edward WHITE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 143

299 So.2d 143

Gregory Edward WHITE, Appellant, v. STATE of Florida, Appellee.

No. T--111.

District Court of Appeal of Florida, First District.

July 25, 1974.

Rehearing Denied Sept. 11, 1974.

David Roth of Cone, Wagner, Nugent, Johnson & McKeown, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.

HOWELL, CHARLES COOK, Jr., Associate Judge.

In defending against this appeal taken by Gregory Edward White from the judgment convicting him of the crime of aggravated assault, the State has escaped Scylla, only to be engulfed by Charybdis.

The jury was not (as White is here contending they should have been) instructed on the lesser included offenses under that of aggravated assault; but both parties below 'agreed that the jury not be instructed on any lesser included offenses of the charge . . .. Neither side objected to the Court's not giving instructions on lesser included offenses'--consequently White 'has no standing to raise the failure of the trial judge to instruct on lesser included offenses.' Williams v. State, Fla., 1973, 285 So.2d 13, 17. Rule 6.7, subd. g., Florida Appellate Rules, provides that 'for all purposes for which an exception has ever been necessary, it is sufficient that a party, at the time that the . . . charge of the court is made, or sought, makes known to the court the action which he . . . desires the court to take, or his . . . objection to the action of the court and his . . . grounds therefor'; and Williams, construing (p. 17) this rule, explains that it 'does not eliminate the requirement that a party's objection be made known to the trial court.' In accord, and citing Williams, is Rayner v. State, Fla.App. 2, 1973, 286 So.2d 604, 605.

However, when the definition of aggravated assault was read to the jury in charge, they were not told, as comprehended by the precise language of the Standard Jury Instructions in Criminal Cases, #2.05, ¹ that one of the elements of an assault is 'doing some act which creates a wellfounded fear of . . . violence being done.' White was entitled to such an instruction; both on the evidence, which tended to show that his victim was never placed in fear ² prior to being struck by the bottle in question, and on the law, ³ which has consistently been to the point that "an assault is any unlawful offer or attempt to injure another with apparent present ability to effectuate the attempt under circumstances creating a fear of immient peril.' Motley v. State, 1945, 155 Fla. 545, 549, 20 So.2d 798, 800 (5--6); Bass v. State, Fla.App. 1, 1970, 232 So.2d 25, 27(1); and Albright v. State, Fla.App. 2, 1968, 214 So.2d 887, 888(1).

White appropriately attacked the instruction as given by objection at the trial, by motion for a new trial, and by assignment of error; and so it is, therefore, that this case must be, and is, for a new trial.

Reversed.

JOHNSON, J., concurs.

RAWLS, C.J., concurs in judgment.

1 'The standard instruction to the jury was the culmination of extensive work by the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, which Committee was composed of many very able jurists and trial attorneys. Any substantial deviation from use of these instructions will almost always end in error on the part of the trial court.'...