ALBERT ROBERTS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed convictions for aggravated assault, armed burglary, and firearm display, rejecting defendant's claim of fundamental error regarding the information's sufficiency and holding that firearm display is not a lesser included offense of armed burglary.
Display of a firearm under Florida Statutes § 790.07(2) is not a lesser included offense of burglary with a dangerous weapon because the firearm display charge requires an element not necessary to prove burglary.
[1] Display of a firearm under Florida Statutes § 790.07(2) is not a lesser included offense of burglary with a dangerous weapon when the firearm display charge requires proo…
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Join FLexlaw to unlock all legal intelligenceDefendant Roberts was convicted of two counts of aggravated assault, burglary of a dwelling while armed with a sawed-off rifle, and display of a sawed…
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PER CURIAM.
On this appeal from a finding of guilty of two counts of aggravated assault, burglary of a dwelling while armed with a sawed-off rifle-and display of a sawed-off rifle during the commission of a felony, the defendant claims fundamental error in that the information tracks the “aggravated assault” statute, Section 784.021(1), Florida Statutes (1977), but does not allege the elements of the offense of aggravated assault.
The defendant pled to the information and did not, at any time, raise in the trial court the issue which he now presents to this court. The proof of the assault was beyond a reasonable doubt in all of the elements of the assault charged. Accordingly, we decline to consider that point. See Catanese v. State, 251 So. 2d 572 (Fla. 4th DCA 1971); Shifrin v. State, 210 So. 2d 18 (Fla. 3d DCA 1968); and Florida Rule of Criminal Procedure 3.190(c).
The second point, addressed to the defendant’s conviction for display of a firearm, see Section 790.07(2), Florida Statutes (1977), claims that this charge was part of the same criminal transaction as that charged in the count for burglary. Inasmuch as the elements that constitute the display of a firearm charge include an allegation not necessary to the proof of the burglary charge, we hold that the displaying of a firearm is not a lesser included offense of burglary with a dangerous weapon. See Brown v. State, 206 So. 2d 377, 383 (Fla.1968).
Affirmed.
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Earvin Smith v. State, 211 So. 3d 176 (Fla. 3d DCA 2016)…e on appeal would represent the rare exception to the general rule that the sufficiency of an indictment or information is not subject to direct review on appeal in the absence of an objection or other challenge in the trial court. Roberts v. State, 374 So. 2d 1000 (Fla. 3d DCA 1979); Ingraham v. State, 32 So. 3d 761 (Fla. 2d DCA 2010); McMillan v. State, 832 So. 2d 946 (Fla. 5th DCA 2002); Hart v. State, 761 So. 2d 334 (Fla. 4th DCA 1998); Carver v. State, 560 So. 2d 258 (Fla. 1st DCA 1990). . This is consis…
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Jackson v. State, 376 So. 2d 269 (Fla. 3d DCA 1979)…PER CURIAM. Affirmed. Zuberi v. State, 343 So. 2d 664 (Fla. 3d DCA 1977); Magueira v. State, 352 So. 2d 587 (Fla. 3d DCA 1977); Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978); Roberts v. State, 374 So. 2d 1000 (Fla. 3d DCA 1979); R.Cr.P. 3.380; see: Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Mikulovsky v. Schubert, 416 F.Supp. 55 (E.D.Wis.1976).…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Catanese v. State, 251 So. 2d 572 (Fla. 4th DCA 1971)
- Shifrin v. State, 210 So. 2d 18 (Fla. 3d DCA 1968)