DAVID ROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
David Ross was convicted of attempted robbery after demanding a wallet from an undercover deputy while claiming to have a gun. The Florida appellate court reversed because the trial court erred in refusing to instruct the jury on the lesser included offenses of battery and assault.
The trial court reversibly erred by refusing to instruct the jury on battery and assault as lesser included offenses of attempted robbery, because these offenses were category four lesser included offenses that were both alleged in the information and supported by the evidence presented.
[1] Battery and assault are category four lesser included offenses of attempted robbery when the accusatory pleading and evidence support convictions for those offenses.
[2] A trial court commits reversible error by refusing to instruct the jury on lesser included offenses when timely requested and supported by the evidence.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Category three embraces offenses necessarily included in the offense charged while category four embraces offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.”
Establishes the legal framework from Brown v. State for classifying lesser included offenses
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRoss accosted Deputy Glen Parker, an undercover agent, while wearing a paper bag over his hand and claiming to hold a gun. He demanded Parker turn ove…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Accusatory Pleading cases and more on FLexlaw
SCHEB, Acting Chief Judge.
Appellant, David Ross, was tried by jury and convicted of attempted robbery. On appeal Ross argues that the trial court erred in refusing his request to instruct the jury on the offenses of battery and assault which he contends are lesser included offenses of the attempted robbery in this case. We agree and reverse.
The information against Ross charged that he:
[D]id unlawfully and knowingly attempt to commit an offense prohibited by law, to-wit: ROBBERY and in such attempt did an act toward the commission of such offense to-wit: threaten or commit a battery on GLEN PARKER with the intent to unlawfully, by force, violence, assault or putting in fear, take away from the person or custody of GLEN PARKER certain property, to-wit: a wallet, the property of GLEN PARKER .
At Ross’ trial, the state presented testimony that Ross had accosted Deputy Glen Parker, an undercover agent for the Lee County Sheriff’s Office. Ross, while wearing a brown paper bag over his hand and claiming to hold a gun, demanded that Deputy Parker turn over his wallet. A scuffle between Ross and Parker ensued. Two other officers arrived on the scene and assisted Parker in arresting Ross. At the conference on instructions, Ross requested the trial court to instruct the jury on the offenses of battery and assault. The court refused.
Brown v. State, 206 So. 2d 377 (Fla.1968), delineates four categories of lesser included offenses on which the trial court must charge the jury. Category three embraces offenses necessarily included in the offense charged while category four embraces offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
As noted, the information alleged the elements of both battery and assault, and the state presented evidence sufficient to support a conviction on each of these crimes. Accordingly, battery and assault were both category four lesser included offenses of the charge of attempted robbery. Since appellant timely requested the court to instruct the jury on both battery and assault, it was reversible error for the trial judge to refuse to give the instruction. Lomax v. State, 345 So. 2d 719 (Fla.1977).
We find no merit in appellant’s other points. Thus, we reverse and remand for a new trial.
OTT and DANAHY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA 1981)…pon the defendant’s request, to charge the jury on the tampering and attempted tampering offenses defined by Section 860.17, Florida Statutes. See Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978); Brown v. State, supra. Accord, Ross v. State, 373 So. 2d 41 (Fla.2d DCA 1979). This brings us to the question whether the failure to give this instruction may be considered harmless. The crime for which Piantadosi was convicted, attempted burglary of a conveyance, is a third-degree felony. See State ex rel.…
-
Snead v. State, 415 So. 2d 887 (Fla. 5th DCA 1982)…nment, the case returned to us on full appeal. We reversed the trial court because the record furnished us at that time showed that Snead should have been discharged because speedy trial time had run before his first trial commenced. Snead v. State, 373 So. 2d 41 (Fla. 1st DCA 1979), withdrawn from publication, rehearing pending. The State filed a motion for rehearing raising issues and presenting evidence which were not supported by the record filed with us. This motion was accompanied by a motion to suppl…
-
N.H.M. v. State, 974 So. 2d 484 (Fla. 2d DCA 2008)…commission of such offense to-wit: threaten or commit a battery on [the victim] with the intent to unlawfully, by force, violence, assault or putting in fear, take away from the person or custody of [the victim] certain property[.]’ ” Ross v. State, 373 So. 2d 41, 41 (Fla. 2d DCA 1979); see also Baker v. State, 578 So. 2d 37, 39 (Fla. 4th DCA 1991) (stating “[t]he information in the instant case adequately alleged that appellant intentionally caused bodily harm to another,” thus supporting conviction for bat…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Lomax v. State, 345 So. 2d 719 (Fla. 1977)