SHAUDE MOODY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Shaude Moody was convicted of aggravated assault following trial for aggravated battery. The court reversed his conviction, holding that aggravated assault is not a lesser included offense of aggravated battery and cannot be submitted to a jury when the defendant was not charged with that crime.
Aggravated assault is not a lesser included offense of aggravated battery, and a defendant cannot be convicted of an offense for which he was not charged by the information. Additionally, defense counsel's explicit objection to the aggravated assault instruction at the charge conference, combined with his failure to rely on that instruction in closing argument, constituted a timely objection that negated any waiver of the misinstruction.
[1] A jury may not be instructed on a crime for which the defendant was not charged by information, unless that crime is a lesser included offense of the crime charged.
[2] A defendant does not waive an objection to a jury instruction on a lesser included offense by failing to object to the instruction during a charge conference, if the reco…
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Join FLexlaw to unlock all legal intelligence“Although the evidence presented at trial would have supported a conviction for aggravated assault, Moody argues the jury should not have been instructed on that crime because he was not charged with it by the information and aggravated assault is not a lesser included offense of aggravated battery.”
Establishes the core issue: whether an uncharged lesser included offense can be submitted to the jury
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Join FLexlaw to unlock all legal intelligenceMoody was charged with aggravated battery for beating the victim Singleton with a hammer, brick, or stick, causing permanent disability or disfigureme…
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[*840] W. SHARP, Judge.
Moody appeals from his conviction and sentence for aggravated assault.1 He had been charged with aggravated battery: beating the victim (Singleton) with a hammer, brick or stick; and causing permanent disability or permanent disfigurement.2 Although the evidence presented at trial would have supported a conviction for aggravated assault, Moody argues the jury should not have been instructed on that crime because he was not charged with it by the information and aggravated assault is not a lesser included offense of aggravated battery. State v. Whitfield, 487 So. 2d 1045 n. 1 (Fla.1986). We agree and reverse.
The State argues that Moody waived this objection by failing to object to the instruction on aggravated assault as a lesser included offense. The record shows the following colloquy took place at the charge conference:
THE COURT: Let’s run over the instructions here for just a few minutes. Aggravated battery instruction, and do you want the lesser of battery?
MR. GUTIERREZ (defense counsel): Yes, Your Honor
MR. JONES (prosecutor): How about aggravated assault?
THE COURT: Well, do you want the lesser of aggravated assault?
MR. GUTIERREZ: No, I don’t think so.
THE COURT: What’s the State’s position?
MR. JONES: He said he was placed in fear. THE COURT: The evidence does show that they could find aggravated assault as a lesser, so I'll list that also as being a third degree felony.
It appears defense counsel did object to the instruction. Nor did defense counsel rely on that instruction in presenting his closing argument. Thus, no waiver of the misinstruction occurred in this case. See Ray v. State, 403 So. 2d 956 (Fla.1981).
Accordingly, we reverse Moody’s conviction and sentence 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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Negron v. State, 938 So. 2d 650 (Fla. 4th DCA 2006)…ggravated 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 information did not allege that the defendant placed Manning in fear…
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Stokes v. State, 773 So. 2d 1239 (Fla. 4th DCA 2000)…ggravated 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). Here, the information has not alleged the elements or the facts necessary to support aggravated assault, because it failed to allege that the Defendant placed the victim in fear by threatening to do violence, coupled with the ap…
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McNair v. State, 244 So. 3d 379 (Fla. 5th DCA 2018)…ndicates what was to occur with the aggravated battery charge. The State agreed to nolle pros the robbery with a firearm charge. McNair would then plead to aggravated assault, which is not a lesser included of aggravated battery. See Moody v. State, 597 So. 2d 839, 840 (Fla. 5th DCA 1992) (citing State v. Whitfield, 487 So. 2d 1045 n.1 (Fla. 1986) ). However, aggravated assault is a category two lesser-included offense of the robbery with a firearm charge. See Fla. Std. Jury Inst. (Crim.) 15.1. By signing the…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Hays v. Altamira Constr. Corp., 591 So. 2d 257 (Fla. 4th DCA 1991)
- Lucio John Salas v. State, 591 So. 2d 257 (Fla. 4th DCA 1991)