LINDSEY MITCHELL HILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lindsey Mitchell Hill was convicted of aggravated assault with a firearm and carrying a concealed firearm. The Florida appellate court affirmed his concealed firearm conviction but reversed his aggravated assault conviction, finding the trial court erred by refusing to instruct the jury on lesser included offenses that Hill had requested.
The trial court erred by refusing the lesser included offense instructions. Because the use of a deadly weapon is a necessary element of aggravated assault with a deadly weapon, and Hill admitted using a firearm, a reasonable jury could not have found him guilty of aggravated assault without a firearm. The jury should have been allowed to consider the lesser included offenses to exercise its right to afford a jury pardon.
[1] A trial court's failure to instruct the jury on a lesser-included offense that is two or more steps removed from the offense charged may be harmless error.
[2] A trial court's failure to instruct the jury on the next immediate lesser-included offense is per se reversible error.
Previewing 2 of 4 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 appellant was charged with aggravated assault with a deadly weapon, to wit a firearm. Since the use of a deadly weapon is a necessary element of that charge, said charge was the primary offense and the firearm merely increased the permissible sentence.”
Establishes that the firearm is an essential element, not merely a sentencing enhancement, for aggravated assault with a deadly weapon
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Join FLexlaw to unlock all legal intelligenceHill was charged with aggravated assault with a deadly weapon (a firearm) under Florida law. During trial, Hill admitted using a firearm. Hill request…
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SCHOONOVER, Chief Judge.
The appellant, Lindsey Mitchell Hill, challenges the judgments and sentences imposed upon him after a jury found him guilty of aggravated assault with a firearm and carrying a concealed firearm. We affirm in part and reverse in part.
The trial court did not commit reversible error in denying the appellant’s motion for mistrial, and we, accordingly, affirm the appellant’s conviction for carrying a concealed firearm.
We agree, however, with the appellant’s contention that he is entitled to a new trial on the aggravated assault with a firearm conviction. The appellant was charged with aggravated assault with a deadly weapon, to wit a firearm, in violation of section 784.021(l)(a), Florida Statutes (1989). During the course of the appellant’s jury trial, his request that the court instruct the jury on the lesser included charges of discharging a firearm in public and improper exhibition of a firearm was refused. The appellant renewed his request for these instructions after the jury was instructed. Appellant also complained of the court’s refusal to give the instructions when he filed a motion for new trial after the jury found him guilty as charged. The appellant filed a timely notice of appeal from the judgment and sentence imposed upon him pursuant to the jury verdict.
The appellant was charged with aggravated assault with a deadly weapon, to wit a firearm. Since the use of a deadly weapon is a necessary element of that charge, said charge was the primary offense and the firearm merely increased the permissible sentence. The appellant admitted using a firearm, and accordingly, no reasonable jury could have found him guilty of aggravated assault without a firearm or without a deadly weapon. The trial court, therefore, erred by instructing the jury that aggravated assault without a firearm was a lesser included offense. The court should have allowed the jury the opportunity to exercise its right to afford the appellant a jury pardon by instructing them on the lesser included offenses requested by the appellant. Fernandez v. State, 570 So. 2d 1008 (Fla. 2d DCA 1990), rev. denied, 581 So. 2d 167 (Fla.1991); 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). See also Lareau v. State, 573 So. 2d 813 (Fla.1991).
We, accordingly, reverse the appellant’s conviction for aggravated assault with a deadly weapon, to wit a firearm, and remand for a new trial on that charge.
Affirmed in part, reversed in part, and remanded.
FRANK and HALL, JJ., concur.
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Michaud v. State, 47 So. 3d 374 (Fla. 5th DCA 2010)…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. The information alleged, inter alia, that Michaud “did unlawful…
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Patterson v. State, 637 So. 2d 955 (Fla. 4th DCA 1994)…So. 2d 106 (Fla. 3d DCA 1992) (trial court erred in refusing to instruct on permissive lesser included offenses of improper exhibition and discharging a firearm in public where accusatory pleading and evidence supported these crimes); Hill v. State, 593 So. 2d 290 (Fla. 2d DCA 1992) (same); Smith v. State, 435 So. 2d 961 (Fla. 1st DCA 1983) (accusatory pleading charging defendant with aggravated battery by "shooting at” another sufficient to allege "exhibition,” because firing the gun makes its character know…
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Emir H. AJA v. State, 658 So. 2d 1168 (Fla. 5th DCA 1995)…d not affect the jury’s deliberations with respect to the aggravated assault charge. Accordingly, we reverse and remand to the lower court for a new trial on this charge. The conviction for carrying a concealed weapon is affirmed. See Hill v. State, 593 So. 2d 290 (Fla. 2d DCA 1992). We note, however, although not mentioned in the briefs, that appellant appears to have been incorrectly sentenced on the concealed weapon charge. On remand, this should be corrected. AFFIRMED IN PART; REVERSED IN PART; and RE…
Authorities Cited
- Hervey Lareau v. State, 573 So. 2d 813 (Fla. 1991)
- Elio Frank Fernandez, Jr. v. State, 570 So. 2d 1008 (Fla. 2d DCA 1990)
- Irving v. State, 337 So. 2d 1014 (Fla. 2d DCA 1976)
- Miroslav Janus v. State, 477 So. 2d 644 (Fla. 2d DCA 1985)