STATE OF FLORIDA, PETITIONER,
v.
JAMES VON DECK, RESPONDENT
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The Florida Supreme Court approved a reversal of a conviction for aggravated assault where the charging information failed to allege the essential element of 'putting in fear,' holding that the State must expressly allege this element when seeking a lesser included offense instruction, and that such elements cannot be established by mere inference.
The State is obligated to allege the 'putting in fear' element in the charging information whenever it seeks an instruction on the permissive lesser included offense of aggravated assault. Elements of an offense cannot be established by mere inference, and an instruction on a lesser included offense cannot be given unless both the accusatory pleading and the evidence support the commission of that offense.
[1] An accusatory pleading must allege all essential elements of a permissive lesser included offense to support an instruction on that offense.
[2] The offense of aggravated assault requires an allegation of an act creating a well-founded fear in the victim that violence is imminent.
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Join FLexlaw to unlock all legal intelligence“Florida law is well settled that the elements of an offense cannot be established by mere inference.”
Establishes the fundamental principle that all elements must be alleged or proven, not inferred
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Join FLexlaw to unlock all legal intelligenceJames Von Deck was charged by information with attempted premeditated murder of a law enforcement officer by firearm. The charging information made no…
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PER CURIAM.
We have for review Von Deck v. State, 593 So. 2d 1129 (Fla. 5th DCA 1992), based on express and direct conflict with Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. James Von Deck was charged by information with attempted premeditated murder of a law enforcement officer by shooting at him with a firearm. The information makes no direct reference to any act by Von Deck creating a well founded fear that violence would be imminently inflicted on the officer. At trial, Von Deck objected to the state’s requested instruction on the permissive lesser included offense of aggravated assault, arguing that all the elements of this offense were not contained in the information. Florida law specifies that an essential element of any assault, including aggravated assault on a law enforcement officer, is an act creating a well founded fear in the victim that violence is imminent. Compare § 784.011, Fla.Stat. (1989) with § 784.07(2), Fla.Stat. (1989) and § 784.021, Fla.Stat. (1989). The objection was overruled.
Von Deck then was found guilty of aggravated assault. On appeal, the Fifth District reversed on grounds that the information did not sufficiently allege the crime. Von Deck.
The state now argues that the element of “putting in fear” can be established by inference, because a shooting is likely to create such fear. One district court case supports this position. Kimbrough. While this may be true in some cases, it will not be true in all. It is possible to commit an attempted murder without also committing aggravated assault, such as where the victim remains unaware of the attempted murder until some time has elapsed after the commission. Florida law is well settled that the elements of an offense cannot be established by mere inference. State v. Dye, 346 So. 2d 538, 541 (Fla.1977). Moreover, we expressly have said that an instruction cannot be given on a permissive lesser included offense unless both the accusatory pleading and the evidence support the commission of that offense. Brown v. State, 206 So. 2d 377, 383 (Fla.1968).
In light of this earlier case law, we find that the State is obligated to allege a “putting in fear” whenever it seeks an instruction on the permissive lesser included offense of aggravated assault. This did not occur here, and the opinion below is approved on that basis. The opinion in Kimbrough is disapproved to the extent it is inconsistent with our views above.
It is so ordered.
BARKETT, C.J., and OVERTON, McDonald, shaw, grimes, kogan and HARDING, JJ., concur.
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Cited By (37 total)
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Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)…g some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011, Fla. Stat. (1993). Thus, an essential element of any assault is the victim’s well-founded fear of imminent violence. See State v. Von Deck, 607 So. 2d 1388 (Fla.1992). Although a shooting is likely to create such fear, it is possible to commit attempted murder without committing an assault, such as where the victim is not aware of the imminent shooting. See id. Accordingly, assault is a permissive less…
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Pena v. State, 829 So. 2d 289 (Fla. 2d DCA 2002)
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Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995)…ree murder. It is undisputed that the information failed to allege that the appellant created in the victims a well founded fear of imminent violence. The absence of this specific allegation in the information is reversible error. State v. Von Deck, 607 So. 2d 1388 (Fla.1992); Roberts. A conviction on a charge not made by the indictment is a denial of due process of law. State v. Gray, 435 So. 2d 816 (Fla.1983). The complete failure of an information to charge a crime is an error that can be raised at any tim…
Previewing 3 of 37 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. DYE, 346 So. 2d 538 (Fla. 1977)
- Kimbrough v. State, 356 So. 2d 1294 (Fla. 4th DCA 1978)
- von Deck v. State, 593 So. 2d 1129 (Fla. 5th DCA 1992)