EUGENE CONRAD SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in charging the jury on the lesser included offense of improper exhibition of a firearm or in denying the defendant's motion for arrest of judgment.
The defendant was charged with aggravated battery but found guilty of the lesser included offense of improper exhibition of a firearm. The defendant c…
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MILLS, Judge.
Smith was charged with aggravated battery. The jury found him guilty of improper exhibition of a firearm, a lesser included offense. He contends the trial court erred in charging the jury on the lesser included offense and in denying his motion for arrest of judgment. We affirm.
Improper exhibition of a firearm is a category 2 lesser included offense of aggravated battery which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Florida Standard Jury Instructions in Criminal Cases, 2d Ed., pages 257 and 260.
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.
The issue is whether “by shooting at” alleges “exhibition.” We conclude that it does. Firing the pistol makes its presence and character known to all. There is no doubt that a bullet from the pistol struck Johnson.
The trial judge did not err in giving the charge or in denying the motion.
AFFIRMED.
ERVIN, C.J., and LARRY G. SMITH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Phillips v. State, 874 So. 2d 705 (Fla. 1st DCA 2004)…es. Our decisions since Von Deck have consistently adhered to the rulings in that case. See, e.g., Andrews v. State, 679 So. 2d 859 (Fla. 1st DCA 1996); Farley v. State, 740 So. 2d 5 (Fla. 1st DCA 1999). We note that our decision in Smith v. State, 435 So. 2d 961 (Fla. 1st DCA 1983), issued prior to Von Deck, did not conform to the holdings of Von Deck or our later cases cited above, but has not heretofore been expressly overruled. In Smith, we acknowledged the necessity of determining whether the informatio…
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State v. Salters, 634 So. 2d 1095 (Fla. 2d DCA 1994)…orrectly granted the motion for new trial because the court failed to instruct the jury on a charge of improper exhibition of a firearm, a permissive lesser included offense. See Walker v. State, 609 So. 2d 106 (Fla. 3d DCA 1992) and Smith v. State, 435 So. 2d 961 (Fla. 1st DCA 1983). We therefore affirm the order granting a new trial. On cross-appeal Salters contends that the trial court erred in instructing the jury on the lesser charge of aggravated assault with a firearm. We agree. In order for aggravat…
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Patterson v. State, 637 So. 2d 955 (Fla. 4th DCA 1994)…ng to instruct on permissive lesser included offenses of improper exhibition and discharging a firearm in public where accusatory pleading and evidence supported these crimes); Hill v. State, 593 So. 2d 290 (Fla. 2d DCA 1992) (same); Smith v. State, 435 So. 2d 961 (Fla. 1st DCA 1983) (accusatory pleading charging defendant with aggravated battery by "shooting at” another sufficient to allege "exhibition,” because firing the gun makes its character known to all, and thus the trial court did not err by instruct…
Authorities Cited
- James v. State, 386 So. 2d 890 (Fla. 1st DCA 1980)