FRANCIS HOWARD JAMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Aggravated assault with a firearm is a category IV lesser included offense of kidnapping with a firearm when the information and proof support it.
[1] Aggravated assault with a firearm can be a category IV lesser included offense of kidnapping with a firearm.
[2] To determine if an offense is a category IV lesser included offense, a court must examine the information to see if all essential elements of the lesser offense are charg…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of kidnapping with a firearm, aggravated assault with a firearm, and possession of a short-barreled shotgun. The defendant…
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PER CURIAM.
James, convicted of kidnapping with a firearm, aggravated assault with a firearm, and possession of a short-barreled shotgun, appeals, urging that aggravated assault with a firearm is a category IV lesser included offense of kidnapping with a firearm. We agree.
In Brown v. State, 206 So. 2d 377 (Fla.1968), the Supreme Court defined four types of lesser included offenses. Category IV encompasses those which may or may not be included in the greater offense depending upon the allegations of the information and the proof at trial. To determine if an offense falls within category IV, one first looks at the information to determine if all essential elements of the lesser offense are charged. If these are present, the proof is then examined to see if it supports the allegations. Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978).
Here, Count I of the information charged that defendant:
[W]ithout lawful authority did then and there forcibly, secretly, or by threat, confine, abduct, or imprison another person, to wit: . . . , against [his] will, with the intent to inflict bodily harm upon or to terrorize the victim or any other person and while perpetrating or attempting to perpetrate the offense had in his possession a firearm or destructive device, to wit: a shotgun, .
This count charges all elements of aggravated assault: an intentional threat to do violence, the apparent ability to harm, and the use of a deadly weapon. The proof showed that appellant confined his victim by threatening him with a loaded shotgun. The allegations and the proof here combine to make aggravated assault with a firearm a lesser included offense of kidnapping with a firearm. Separate sentences are therefore precluded by § 775.021(4), Fla.Stat. (1977).
Accordingly, James’ sentence for aggravated assault with a firearm is vacated and the cause remanded for correction. The defendant need not be present for such correction.
ERVIN and SHAW, JJ., and MELVIN, WOODROW, M. (Retired), Associate Judge, concur.
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Ortiz-Medina v. State, 126 So. 3d 1183 (Fla. 4th DCA 2012)…viction and sentence for aggravated assault with a deadly weapon. A defendant’s double jeopardy rights are violated when he is convicted of two “[ojffenses which require identical elements of proof.” § 775.021(4)(b)l., Fla. Stat. In James v. State, 386 So. 2d 890, 891 (Fla. 1st DCA 1980), the court found that a claim that the defendant kidnapped the victim while armed with the intent “to inflict bodily harm upon or to terrorize the victim” alleged the same elements of aggravated assault with a firearm. “The…
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Smith v. State, 435 So. 2d 961 (Fla. 1st DCA 1983)…0. To determine if an offense is properly charged as a category 2 included offense, one looks at the information to determine if all the essential elements of the lesser offense are charged and if the proof supports the allegations. James v. State, 386 So. 2d 890 (Fla. 1st DCA 1980). Smith contends the elements of the lesser included offense are not included in the charge. The charge alleges that Smith committed a battery on Johnson by shooting at Spencer. He does not contend there is a failure of proof. T…
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Zayneller Gates v. State, 448 So. 2d 1230 (Fla. 1st DCA 1984)…PER CURIAM. AFFIRMED. Ray v. State, 403 So. 2d 956 (Fla.1981); James v. State, 386 So. 2d 890 (Fla. 1st DCA 1980). BOOTH, SHIVERS and JOANOS, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978)