ANTHONY YALE BATES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's convictions for robbery with a firearm and burglary with a firearm were affirmed, but his sentence was reversed and remanded because the trial court failed to enter a written order of departure from sentencing guidelines.
The trial court's refusal to instruct on aggravated assault as a lesser included offense was harmless error, and the sentence departure was improper due to lack of a written departure order.
[1] Refusal to instruct on aggravated assault as a lesser included offense of robbery with a firearm is harmless error when the trial court instructs on simple robbery, a cat…
[2] Sentence departure from guidelines is improper when the trial court fails to enter a written order of departure.
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Join FLexlaw to unlock all legal intelligenceAnthony Yale Bates was convicted of robbery with a firearm and burglary with a firearm. The trial court gave an instruction on simple robbery but refu…
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PER CURIAM.
Appellant, Anthony Yale Bates, appeals his judgment and sentence for robbery with a firearm and burglary with a firearm. We affirm his convictions and reverse his sentence and remand for imposition of a sentence within the guidelines.
Appellant first argues as error the failure of the trial court to give his requested instruction on aggravated assault as a lesser included offense of the charged offense of robbery with a firearm. Aggravated assault is a category two lesser included offense. The trial judge gave an instruction on simple robbery, a category one lesser offense, one step removed from the offense for which appellant was found guilty. Any error in refusing to give the requested instruction on aggravated assault was harmless. Flint v. State, 463 So. 2d 554 (Fla. 2d DCA 1985). Appellant also argues that the trial judge cited an improper reason for departing from the recommended guidelines sentence. We find the departure improper for the reason that the trial judge failed to enter a written order of departure. Pope v. State, 561 So. 2d 554 (Fla.1990).
We affirm appellant’s convictions and reverse his sentence and remand for sentencing within the guidelines.
RYDER, A.C.J., and CAMPBELL and PATTERSON, JJ., concur.
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Servilio Crespo v. State, 647 So. 2d 295 (Fla. 3d DCA 1994)…l court is required to instruct the jury on the next immediate lesser included offense of the crime charged as the trial court properly did here by instructing the jury on simple robbery. State v. Abreau, 363 So. 2d 1063 (Fla. 1978); Bates v. State, 579 So. 2d 849 (Fla. 2d DCA 1991). Failure to instruct on a lesser included offense one step removed from the charged offense is per se reversible error. Reddick v. State, 394 So. 2d 417 (Fla.1981); Abreau, 363 So. 2d at 1064. However, aggravated assault is two st…
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Mohammed v. State, 662 So. 2d 399 (Fla. 5th DCA 1995)…PER CURIAM. AFFIRMED. See State v. Abreau, 363 So. 2d 1063 (Fla.1978); Crespo v. State, 647 So. 2d 295 (Fla. 3d DCA 1994); Bates v. State, 579 So. 2d 849 (Fla. 2d DCA 1991). GOSHORN, GRIFFIN and THOMPSON, JJ., concur.…
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Authorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- Flint v. State, 463 So. 2d 554 (Fla. 2d DCA 1985)