MIROSLAV JANUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Miroslav Janus appealed his aggravated assault conviction, raising three issues. The court affirmed on the first two issues but reversed on the third, finding that the trial court erred by failing to instruct the jury on the lesser-included offense of improper exhibition of a firearm.
The court found no error in the first two rulings but reversed on the third issue. The trial court erred in failing to instruct the jury on improper exhibition of a firearm as a lesser-included offense of aggravated assault because the offense is one step removed from the charged offense, the information alleged its essential elements, and the trial evidence would have supported a conviction on that charge.
[1] A trial court does not err in refusing a jury instruction on justifiable use of force when the evidence does not support its application to the facts of the case.
[2] A trial court does not err in overruling an objection to redirect examination questions when cross-examination has opened the door to the subject matter.
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Join FLexlaw to unlock all legal intelligence“improper exhibition of a firearm is actually the next lesser-included offense of aggravated assault”
Establishes the hierarchical relationship between the charged offense and the lesser-included offense at issue
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Join FLexlaw to unlock all legal intelligenceDefendant was charged with and convicted of aggravated assault. At trial, the defendant requested a jury instruction on the lesser-included offense of…
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PER CURIAM.
Defendant raises three issues in his appeal from a conviction for aggravated assault. We find no merit in the first two issues but reverse on the third.
With respect to defendant’s first contention on appeal, the trial court did not err in refusing to give a jury instruction as to the justifiable use of force; the evidence did not support the application of that instruction to the facts of this case. We also disagree with defendant’s contention that the trial court erred in overruling defendant’s objection to questions by the state on redirect examination of a witness as to defendant’s attitude at the time of his arrest; the questions on cross-examination of that witness opened the door to the subject. See Hinton v. State, 347 So. 2d 1079 (Fla. 3d DCA 1977).
However, we agree with defendant’s contention that the jury should have been instructed, as defendant requested, on the lesser-included offense of improper exhibition of a firearm. That offense is listed in the standard jury instructions as a category 2 lesser-included offense of aggravated assault. The instructions list assault as the only category 1 offense under aggravated assault. But improper exhibition of a firearm is actually the next lesser-included offense of aggravated assault. Aggravated assault is a third degree felony with a maximum sentence of imprisonment of five years. Improper exhibition of a firearm is a first degree misdemeanor with a maximum sentence of one year imprisonment. Assault is a second degree misdemeanor with a maximum sentence of sixty days imprisonment. Thus, improper exhibition of a firearm is the next lesser-included offense of aggravated assault and, if the pleadings and proof support the charge, it is reversible error not to give a requested instruction on an offense which is one step removed from the charged offense. See State v. Abreau, 363 So. 2d 1063 (Fla.1978). In this case the information alleged the essential elements of improper exhibition of a firearm, and the evidence at trial would have supported a verdict on that charge. Therefore, it was error not to instruct the jury on that lesser-included offense. See Benjamin v. State, 462 So. 2d 110 (Fla. 5th DCA 1985).
Reversed and remanded for a new trial.
OTT, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.
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Elio Frank Fernandez, Jr. v. State, 570 So. 2d 1008 (Fla. 2d DCA 1990)…t offense). The evidence presented in this case supported Mr. Fernandez’s requested jury instruction, and thus, the trial court should have given the jury the requested instruction. See Brown v. State, 206 So. 2d 377 (Fla. 1968). Cf. Janus v. State, 477 So. 2d 644 (Fla. 2d DCA 1985) (improper exhibition of a firearm may be a lesser-included offense of aggravated assault); Craft v. State, 441 So. 2d 704 (Fla. 2d DCA 1983) (improper exhibition of a dangerous weapon is a lesser-included offense of aggravated ass…
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Michaud v. State, 47 So. 3d 374 (Fla. 5th DCA 2010)…is the next lesser-included offense of aggravated assault and if the pleadings and proof support the charge, it is reversible error not to give a requested instruction on an offense which is one step removed from the charged offense. Janus v. State, 477 So. 2d 644, 645 (Fla. 2d DCA 1985); see also Hill v. State, 593 So. 2d 290 (Fla. 2d [*377] DCA 1992); Devaughn v. State, 582 So. 2d 728 (Fla. 1st DCA 1991). In the instant case, the requested instruction was supported by both the information and the evidence.…
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Meyer v. State, 501 So. 2d 8 (Fla. 4th DCA 1986)…o. 2d 599 (Fla.1981); Fla.Std. Jury Instr. (Crim.) p. 260. See generally Brown v. State, 206 So. 2d 377 (Fla.1968). The trial court erred in failing to give the requested instruction. See State v. Abreau, 363 So. 2d 1063 (Fla.1978); Janus v. State, 477 So. 2d 644 (Fla. 2d DCA 1985); Irving v. State, 337 So. 2d 1014 (Fla. 2d DCA 1976), cert. denied, 348 So. 2d 953 (Fla.1977). [*9] With respect to the other issue on appeal, we find sufficient evidence that the victim was placed in fear of imminent bodily harm.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Benjamin v. State, 462 So. 2d 110 (Fla. 5th DCA 1985)
- Hinton v. State, 347 So. 2d 1079 (Fla. 3d DCA 1977)