RANDALL G. ANTOSH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Randall Antosh appeals his misdemeanor conviction for discharging a firearm in public and one-year probation sentence. The appellate court affirms the conviction and probation but strikes a $2,500 charitable contribution condition, finding no statutory authority for courts to impose charitable contributions as probation conditions.
The court affirmed the conviction and probation order but struck the charitable contribution condition. The offense of discharging a firearm in public was a proper lesser included offense, the trial court properly refused to instruct on carrying a concealed weapon (which was not a category one or two lesser offense), and the trial court lacked statutory authority to impose a charitable contribution as a probation condition.
[1] A conviction for discharging a firearm in public may be a proper lesser included offense of a more serious charge if the defendant fails to object to jury instructions on…
[2] A trial court is not required to instruct the jury on an offense that is not a category one or category two lesser offense of the crime charged.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the offense of discharging a firearm in public is lesser in degree and penalty than the offense charged in the information”
Establishes that discharging a firearm in public qualifies as a proper lesser included offense
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Join FLexlaw to unlock all legal intelligenceRandall G. Antosh was convicted of the misdemeanor offense of discharging a firearm in public under Florida Statute § 790.15(1985). The trial court se…
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PER CURIAM.
This is an appeal by the defendant Randall G. Antosh from a conviction for the misdemeanor of discharging a firearm in public [§ 790.15, Fla.Stat.(1985) ] and an order placing the defendant on one-year probation. We affirm the conviction and probation order under review, but strike a probationary condition imposed by the trial court which requires the defendant to make a $2,500 contribution to a named charity. We reach this result based on the following briefly stated legal analysis. First, we see no merit in the defendant’s central contention that the crime for which he was convicted was not a proper lesser included offense in the crime for which he was charged in the information. This is so because (1) the defendant did not object to a jury charge below on discharging a firearm in public as a lesser offense, and (2) the offense of discharging a firearm in public is lesser in degree and penalty than the offense charged in the information. Ray v. State, 403 So. 2d 956, 961 (Fla.1981).
Second, we see no merit in the defendant’s contention that the trial court erred in refusing to instruct the jury on the offense of carrying a concealed weapon as, plainly, this was not a category one or category two lesser offense in the crime charged in the information. This being so, no charge on this offense was required. See Hall v. State, 460 So. 2d 428 (Fla. 1st DCA 1984), review denied, 469 So. 2d 749 (Fla.1985); Green v. State, 459 So. 2d 351 (Fla. 2d DCA 1984); San Fratello v. State, 154 So. 2d 327 (Fla. 2d DCA 1963). The remaining point concerning a jury question has no merit and requires no discussion.
Third, there is no statutory authority which authorizes a trial court to impose as a condition of probation that the defendant make a contribution to a charity, as here. This being so, the probationary condition imposed in this case that the defendant make a $2,500 contribution to “The Deed Club” cannot stand. See Williams v. State, 505 So. 2d 478 (Fla. 2d DCA 1987); Donald & Bales Exterminating, Inc. v. State, 487 So. 2d 78 (Fla. 1st DCA 1986); Purvis v. State, 442 So. 2d 1085 (Fla. 2d DCA 1983).
The conviction and probation order under review is affirmed, save for the probation condition that the defendant make a $2,500 charitable contribution to “The Deed Club,” which condition is hereby stricken from the order of probation.
Affirmed as modified.
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Renaldo J. Bell v. State, 216 So. 3d 751 (Fla. 5th DCA 2017)…v. State, 686 So. 2d 602, 602-03 (Fla. 2d DCA 1996) (striking from a defendant’s sentence an assessment to the Hillsborough County Court Improvement Fund as not being authorized under any existing statute as either a fine or cost); Antosh v. State, 510 So. 2d 1158, 1159 (Fla. 3d DCA 1987) (striking a probationary condition that the defendant make a monetary contribution to a named charity because “there is no statutory authority which authorizes a trial court to impose as a condition of probation that the def…
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Acosta-Cortina v. Sec'y, Dep't of Corr. (Pinellas County) (M.D. Fla. 2025)…efendant "did not object" at trial to the lesser-included- offense instruction and (2) the lesser-included offense “was lesser in degree and penalty than the main charge." Ayala v. State, 879 So. 2d 1, 3 (Fla. 2d DCA 2004); see also Antosh v. State, 510 So. 2d 1158, 1159 (Fla. 3d DCA 1987) (affirming conviction on lesser-included offense “because (1) the defendant did not object to a jury charge below on discharging a firearm in public as a lesser offense, and (2) the offense of discharging a firearm in public…
Authorities Cited
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Fratello v. State, 154 So. 2d 327 (Fla. 2d DCA 1963)
- Williams v. State, 505 So. 2d 478 (Fla. 2d DCA 1987)
- Meinstein v. Travel ETC., Inc., 442 So. 2d 1085 (Fla. 3d DCA 1983)
- Green v. State, 459 So. 2d 351 (Fla. 2d DCA 1984)
- Donald & Bales Exterminating, Inc. v. State, 487 So. 2d 78 (Fla. 1st DCA 1986)
- Osborne Fredrick Hall v. State, 460 So. 2d 428 (Fla. 1st DCA 1984)