GEORGE M. GAYLORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Gaylord was convicted of robbery with a weapon and aggravated battery, receiving consecutive sentences. He appealed arguing the aggravated battery conviction should be vacated as a lesser included offense of robbery, and challenging attorney's fees assessed without proper notice and hearing.
The court affirmed the convictions for robbery with a weapon and aggravated battery because the information charging robbery with a weapon did not allege that the weapon was deadly, which is an essential element of aggravated battery. However, the court vacated the assessment of attorney's fees and costs because the trial court failed to provide the notice and hearing required by statute.
[1] A conviction for aggravated battery cannot stand as a lesser included offense of robbery where the charging instrument for robbery does not allege that the weapon used wa…
[2] A court must provide notice and a hearing before assessing attorney's fees and costs for a public defender's services.
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“In order to convict of a category four (now two) lesser included offense, the language of the information which charges the greater offense must allege all of the elements of the lesser offense although such lesser offense need not be an essential ingredient of the major offense.”
Establishes the legal standard for determining whether a charge constitutes a lesser included offense
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with robbery with a weapon (count I) and aggravated battery (count II, involving a deadly weapon described as a bottle). He was …
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GRIMES, Acting Chief Judge.
The state charged appellant with robbery with a weapon and aggravated battery. He was convicted of both charges and received consecutive twenty-five and fifteen year sentences. Among other things, he contends that pursuant to section 775.021(4), Florida Statutes (1981), his sentence for aggravated battery should be vacated on the premise that the aggravated battery was a lesser included offense of the robbery with a weapon.
Appellant relies primarily upon Hicks v. State, 382 So. 2d 389 (Fla.1st DCA 1980), in which the court held that under the accusatory pleadings and proof, the charge of aggravated battery was a category four lesser included offense of attempted robbery with a deadly weapon. In that case since the same weapon was involved, there was no way to prove the attempted robbery with a deadly weapon without also proving the aggravated battery because one of the elements of the aggravated battery was the use of a deadly weapon. § 784.045, Fla.Stat. (1981). Here, like Hicks, the same weapon was involved.
However, unlike Hicks, count I only charged appellant with robbery with an unnamed weapon, whereas count II charged aggravated battery through the use of a deadly weapon described as a bottle.
Thus, Hicks is not on point. In order to convict of a category four (now two)1 lesser included offense, the language of the information which charges the greater offense must allege all of the elements of the lesser offense although such lesser offense need not be an essential ingredient of the major offense. Brown v. State, 206 So. 2d 377 (Fla.1968). Appellant could not have been convicted of aggravated battery as a lesser included offense under count I because of the absence of the allegation that the weapon used in the robbery was deadly.
Appellant does raise a valid point with respect to the assessment against him of $800 attorney’s fees and costs for his defense by the public defender. So far as we can ascertain from the record, the court entered this order without the notice and hearing which section 27.56(7), Florida Statutes (1979), requires. See McGeorge v. State, 386 So. 2d 29 (Fla. 5th DCA 1980).
We affirm appellant’s convictions. However, we vacate the final judgment assessing attorney’s fees and costs and remand the case for a hearing concerning these matters.
RYDER and SCHOONOVER, JJ., concur. . See In re Use By the Trial Courts of the Standard Jury Instructions in Criminal Cases, Nos. 57,734 and 58,799 (Fla. Apr. 16, 1981).
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Drumm v. State, 432 So. 2d 765 (Fla. 2d DCA 1983)…from an insolvent defendant. Anderson v. State, 415 So. 2d 49 (Fla. 2d DCA 1982). The record, however, reflects that the court entered its order without the notice and hearing required by section 27.56(7), Florida Statutes (1981). Gaylord v. State, 413 So. 2d 72 (Fla. 2d DCA 1982). We therefore vacate the final judgment assessing attorney’s fees and costs and remand for a hearing consistent with these matters. Otherwise, the judgment and sentence are affirmed. OTT, C.J., and CAMPBELL, J., concur. SCHOON…
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D.L., Jr. v. State, 491 So. 2d 1243 (Fla. 2d DCA 1986)…e disorderly conduct is not a lesser included offense of the crimes of battery and criminal mischief. A necessarily lesser included offense is one whose constituent elements are included within the elements of the greater offense. Gaylord v. State, 413 So. 2d 72 (Fla. 2d DCA 1982). A comparison of the elements of battery, section 784.-03, Florida Statutes (1985), and criminal mischief, section 806.13, Florida Statutes (1985), with those of disorderly conduct, section 877.03, Florida Statutes (1985), indicat…
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White v. State, 412 So. 2d 28 (Fla. 2d DCA 1982)…reater offense must allege all of the elements of the lesser offense, and the proof must support the allegation of the lesser offense. Brown v. State. In this case count one cannot be read to include a charge of sexual battery. See Gaylord v. State, 413 So. 2d 72 (Fla. 2d DCA 1982), involving a similar analysis in a different context. Since count two was not a lesser included offense of count one, the court properly entered separate sentences on both counts. § 775.021(4), Fla.Stat. (1981). AFFIRMED. RYDER…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- McGEORGE v. State, 386 So. 2d 29 (Fla. 5th DCA 1980)
- Hicks v. State, 382 So. 2d 389 (Fla. 1st DCA 1980)