ALAN HAYS AND JENNIFER HAYS, HIS WIFE, APPELLANTS/CROSS APPELLEES,
v.
ALTAMIRA CONSTRUCTION CORPORATION, APPELLEES/CROSS APPELLANTS
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PER CURIAM.
We affirm.in all respects except two. We remand to the trial court with instructions to amend its final judgment to indicate the court’s ruling on Alan and Jennifer Hays’ counterclaim for defective workmanship against Altamira Construction Corporation (Altamira) and to award prejudgment interest to Altamira on its cross appeal. Altamira’s damages accrued as of the date Hays refused payment resulting in Altamira’s withdrawal from the job. Cf. Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985); Ferrell v. Ashmore, 507 So. 2d 691 (Fla. 1st DCA 1991). Since it is unclear from the final judgment appealed whether the trial court considered and ruled upon the Hays’ counterclaim, we remand to the trial court.
AFFIRMED AND REMANDED WITH DIRECTIONS.
GUNTHER and STONE, JJ., and WALDEN, JAMES H., Senior Judge, concur.
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Negron v. State, 938 So. 2d 650 (Fla. 4th DCA 2006)…ted assault is not a necessarily lesser included offense of aggravated battery and it can be considered an included offense only, if at all, where the information charges the elements of both and the facts necessary to support both.” Salas v. State, 591 So. 2d 257, 258 (Fla. 4th DCA 1991); see Moody v. State, 597 So. 2d 839 (Fla. 5th DCA 1992). 773 So. 2d at 1240. In this case, the information did not allege the necessary elements to support a lesser included instruction for aggravated assault. The informat…
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Wilburn v. State, 840 So. 2d 384 (Fla. 2d DCA 2003)…Stokes v. State, 773 So. 2d 1239 (Fla. 4th DCA 2000). “ ‘[I]t can be considered an included offense only, if at all, where the information charges the elements of both and the facts necessary to support both.’ ” Id. at 1240 (quoting Salas v. State, 591 So. 2d 257, 258 (Fla. 4th DCA 1991)). The information filed against Wilburn did not set forth all the elements of aggravated assault with a firearm. See §§ 784.011-.021, Fla. Stat. (1999). Specifically, the information did not allege that Wilburn created the…
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Shaude Moody v. State, 597 So. 2d 839 (Fla. 5th DCA 1992)…ence for aggravated assault because he was neither charged nor prosecuted for that offense. This decision, however, will not prevent the State from prosecuting Moody for aggravated assault based on a properly drafted information. See Salas v. State, 591 So. 2d 257 (Fla. 4th DCA 1991). REVERSED and REMANDED. PETERSON, J., concurs. DAUKSCH, J., concurs in conclusion only. . § 784.021, Fla.Stat. (1989). . § 784.045(1), Fla.Stat. (1989).…
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- Argonaut Ins. Co. v. MAY Plumbing Co., 474 So. 2d 212 (Fla. 1985)
- Ferrell v. Ashmore, 507 So. 2d 691 (Fla. 1st DCA 1987)