JOHNNY RAY OWENS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Florida Supreme Court held that an information alleging only that a defendant "carried" a firearm is insufficient to support a jury instruction on aggravated assault, which requires proof of "use" of a deadly weapon in committing an assault.
An information alleging only that a defendant carried a firearm does not allege the essential element of use required for aggravated assault under section 784.021(1)(a).
[1] Carrying a firearm, the element required for armed robbery, is distinct from using a firearm, the element required for aggravated assault, and an information must allege…
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Join FLexlaw to unlock all legal intelligenceOwens was charged with armed robbery and sought a jury instruction on aggravated assault as a lesser included offense, but the information alleged onl…
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EHRLICH, Justice.
We accepted jurisdiction to answer the certified question:
Whether an information which alleges that a defendant “carried” a firearm is sufficient to allege an essential element of aggravated assault, an offense that is statutorily defined by section 784.-021(l)(a) as an assault with a deadly weapon.
Owens v. State, 444 So. 2d 951, 952 (Fla. 2d DCA 1984). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Owens was charged, inter alia, with armed robbery. Section 812.13, Fla.Stat. (1981). He sought a jury instruction on aggravated assault, section 784.021, Fla. Stat. (1981), as a lesser included offense. The trial judge refused, as the information against Owens failed to allege that Owens used the gun he carried to commit an as sault during the robbery. The district court affirmed, relying on Vitko v. State, 363 So. 2d 42 (Fla. 2d DCA 1978). In Vitko, the court distinguished between carrying a weapon, the element in section 812.13, and using a weapon, the element in section 784.021. We have endorsed this distinction in State v. Baker, 452 So. 2d 927 (Fla.1984). The trial judge properly refused to give the requested instruction because the information fails to allege use of the weapon in committing an assault. The decision of the district court is approved.
It is so ordered.
BOYD, C.J., and McDONALD and SHAW, JJ., concur. ADKINS and OVERTON, JJ., dissent.
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…Gandy v. State, 560 So. 2d 1363 (Fla. 1st DCA 1990); Harris v. State, 520 So. 2d 639 (Fla. 1st DCA), rev. denied, 536 So. 2d 244 (Fla.1988). . See State v. Glenn, 558 So. 2d 4 (Fla.1990); Garcia v. State, 476 So. 2d 170 (Fla.1985); Owens v. State, 475 So. 2d 1238 (Fla.1985); State v. Baker, 452 So. 2d 927 (Fla.1984); State v. Gibson, 452 So. 2d 553 (Fla.1984); Collins v. State, 577 So. 2d 986 (Fla. 4th DCA 1991); Brown v. State, 569 So. 2d 1320 (Fla. 1st DCA 1990); Burton v. State, 522 So. 2d 88 (Fla. 5th DC…
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Denmark v. State, 538 So. 2d 68 (Fla. 1st DCA 1989)…lesser included offense, based on its statutory elements, the intent of the legislature clearly is to provide for separate convictions and punishments for the two offenses. § 775.021(4), Fla.Stat. (1979)." 452 So. 2d at 929. Accord, Owens v. State, 475 So. 2d 1238 (Fla.1985) (jury could not be instructed on aggravated assault as a lesser included offense of armed robbery). The Fifth District Court of Appeal in Wright v. State, 519 So. 2d 1157 (Fla. 5th DCA 1988), and again in Richardson v. State, 523 So. 2d…
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State v. IN the Interest OF D.I., 477 So. 2d 71 (Fla. 4th DCA 1985)…le Insurance Co. v. Judges of the District Court of Appeal, Fifth District, 405 So. 2d 980 (Fla.1981); Chapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 138 So. 630 (1932); Owens v. State, 444 So. 2d 951 (Fla.2d DCA 1984), approved, 475 So. 2d 1238 (Fla.1985); United Faculty of Florida v. Board of Regents, 423 So. 2d 429 (Fla.1st DCA 1982). Section 35.10, Florida Statutes (1983), specifies that “[t]he district court of appeal shall hold two regular terms each year ... commencing respectively…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Baker, 452 So. 2d 927 (Fla. 1984)
- Vitko v. State, 363 So. 2d 42 (Fla. 2d DCA 1978)
- Owens v. State, 444 So. 2d 951 (Fla. 2d DCA 1984)