THEODIS TOLBERT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We reverse the defendant’s conviction for aggravated battery upon a holding that where, as here, the defendant was charged with sexual battery, the not-necessarily-included offense of aggravated battery is a lesser offense of sexual battery only if the elements of Section 784.045, Florida Statutes (1983), are alleged in the charging document.1 Cf. Bragg v. State, 433 So. 2d 1375 (Fla.2d DCA 1983); Gay v. State, 432 So. 2d 602 (Fla.2d DCA 1983). Since the information in the present case failed to allege an aggravated battery, the fact that such an offense may have been shown by the evidence is irrelevant; a defendant cannot stand convicted of a crime for which he was not charged. Ray v. State, 403 So. 2d 956 (Fla.1981).
Reversed.
. For example, in the instant case, because no deadly weapon was used, the information should have alleged that the defendant in committing the sexual battery intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement to the victim.
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Kem Mateo v. State, 757 So. 2d 1229 (Fla. 2d DCA 2000)…rious personal injury. The jury found Mateo guilty of aggravated battery on count one, and not guilty on counts two and three. We initially note that aggravated battery is not a necessarily-included offense of sexual battery. See Tolbert v. State, 474 So. 2d 5, 6 (Fla. 3d DCA 1985). Accordingly, the State’s charging document will not support Mateo’s conviction unless it alleges the essential elements of aggravated battery outlined in section 784.045, Florida Statutes (1995). That isthe information must al…
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Derrek Carnell Douglas v. State, 841 So. 2d 697 (Fla. 3d DCA 2003)…tion for aggravated battery cannot stand because the information charging Douglas with sexual battery does not allege the essential elements of aggravated battery: That defendant intentionally or knowingly caused great bodily harm. Tolbert v. State, 474 So. 2d 5 (Fla. 3d DCA 1985); Mateo v. State, 757 So. 2d 1229 (Fla. 2d DCA 2000). Moreover, the court erred in denying Douglas’s peremptory challenge of juror Towne. The reasons offered for the challenge were race neutral, Melbourne v. State, 679 So. 2d 759…
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Theodis Tolbert, Jr. v. State, 522 So. 2d 420 (Fla. 3d DCA 1988)…PER CURIAM. Following our opinion reported in Tolbert v. State, 474 So. 2d 5 (Fla. 3d DCA 1985) the matter reoccurred in the trial court and the state filed an information charging a lesser crime arising out of the same criminal episode as involved in the earlier criminal procedure, but which was not one included as a lesser…
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- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- GAY v. State, 432 So. 2d 602 (Fla. 2d DCA 1983)
- Cleveland O. Bragg v. State, 433 So. 2d 1375 (Fla. 2d DCA 1983)