BRIAN RICHARD MEYER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in failing to instruct the jury on the lesser included offense of improper exhibition of a firearm. The court also vacated the sentence on a remaining count due to guideline departure without written reasons.
Appellant was convicted of aggravated assault for pointing a firearm at victims in another vehicle. The trial court denied a requested jury instructio…
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PER CURIAM.
Appellant-defendant was convicted on two counts of aggravated assault. The state charged that he pointed a firearm from one vehicle at the victims in another. The trial court denied appellant’s requested jury instruction on the lesser included offense of improper exhibition of a firearm. No other “lessers” were requested. Improper exhibition of a firearm is a category II lesser included offense of aggravated assault. In the Matter of the Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So. 2d 594 (Fla.), modified, 431 So. 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). With respect to the other issue on appeal, we find sufficient evidence that the victim was placed in fear of imminent bodily harm. Therefore, the trial court did not err in denying the motion for judgment of acquittal.
We reverse the judgment as to counts I and II and remand for a new trial on the charges of aggravated assault.
DOWNEY, LETTS and STONE, JJ., concur. ON MOTION FOR CLARIFICATION
Appellant’s timely Motion for Clarification is granted. By the opinion of this court of November 5,1986, appellant’s conviction on counts I and II were reversed. The sentence on the remaining count is thereby converted to a sentence in excess of the guidelines without written reasons for departure. We therefore vacate appellant’s sentence on the charge of carrying a concealed firearm and remand for resentencing.
DOWNEY, LETTS and STONE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Devaughn v. State, 582 So. 2d 728 (Fla. 1st DCA 1991)…the category 2 lesser included offense of improper exhibition of a firearm. Because we find that the pleadings and proof supported a charge for improper exhibition, it was error for the trial court to refuse the requested charge. See Meyer v. State, 501 So. 2d 8 (Fla. 4th DCA 1986); Janus v. State, 477 So. 2d 644 (Fla. 2d DCA 1985). Accordingly, the judgment of conviction is reversed and the case is remanded for a new trial. ERVIN, ZEHMER and MINER, JJ., concur.…
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Christ v. State, 104 So. 3d 1262 (Fla. 2d DCA 2013)…he trial court erred by failing to give the requested instruction as a lesser-included offense of aggravated assault. See Janus, 477 So. 2d at 645; Irving v. State, 337 So. 2d 1014, 1016 (Fla. 2d DCA 1976); Michaud, 47 So. 3d at 376; Meyer v. State, 501 So. 2d 8, 8 (Fla. 4th DCA 1986). Accordingly, we reverse and remand for a new trial. Reversed and remanded. LaROSE and KHOUZAM, JJ„ Concur.…
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Royce Rigdon v. State, 621 So. 2d 475 (Fla. 4th DCA 1993)…accusatory pleading and the evidence supported an instruction on this category two, permissive, lesser included offense. See State v. Daophin, 533 So. 2d 761, 762 (Fla.1988). We have previously held such an omission to be error. See Meyer v. State, 501 So. 2d 8 (Fla. 4th DCA 1987); see also DeVaughn v. State, 582 So. 2d 728 (Fla. 1st DCA 1991) (trial court’s refusal to give jury instruction on category two lesser included offense of improper exhibition of a firearm is reversible error where the pleadings a…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- In re the USE BY the Trial Courts OF the Standard Jury Instructions IN Crim. Cases & the Standard Jury Instructions in Misdemeanor Cases, 431 So. 2d 594 (Fla. 1981)
- In re the USE BY the Trial Courts OF the Standard Jury Instructions IN Crim. Cases, 431 So. 2d 599 (Fla. 1981)
- Irving v. State, 337 So. 2d 1014 (Fla. 2d DCA 1976)
- Miroslav Janus v. State, 477 So. 2d 644 (Fla. 2d DCA 1985)