HANDY WATKINS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The defendant was convicted of aggravated battery as a lesser-included offense to a second-degree murder charge. The court reversed because the jury instruction on aggravated battery lacked support in the accusatory pleading, violating the requirement that both the pleading and evidence must support a lesser-included offense instruction.
The jury instruction was erroneous because, while the accusatory pleading may have supported aggravated battery based on use of a deadly weapon, the jury was instructed on causing great bodily harm—a theory unsupported by the accusatory pleading. An instruction on a permissive lesser-included offense requires support from both the accusatory pleading and the evidence.
[1] A jury instruction on a permissive lesser included offense is erroneous if neither the accusatory pleading nor the evidence supports the commission of that offense.
[2] A defendant may be entitled to a new trial on a lesser included offense when the jury charge on that offense was erroneous.
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Join FLexlaw to unlock all legal intelligence“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.”
States the controlling legal standard requiring alignment between the pleading and the jury instruction on lesser-included offenses.
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Join FLexlaw to unlock all legal intelligenceThe defendant was tried on second-degree murder charges for striking a victim's head against a concrete or tile floor. The defendant initially request…
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PER CURIAM.
The defendant was put to a jury trial on an information charging him with second-degree murder by reason of striking the victim’s head against a concrete or tile floor. At the close of all the evidence, the defendant indicated he was requesting no charge of lesser included offenses. The state then requested a charge of aggravated battery as a lesser included offense. The trial judge agreed and instructed the jury on aggravated battery by reason of causing great bodily harm or permanent disability to the victim, pursuant to section 784.045(l)(a)l., Florida Statutes (1991). The judge gave no instruction encompassing the use of a deadly weapon as proscribed by section 784.045(l)(a)2., Florida Statutes (1991). The jury found the defendant guilty of aggravated battery.
While the accusatory pleading may have placed the defendant on notice of possible aggravated battery by reason of striking the victim’s head on a concrete or tile floor, i.e. a deadly weapon, the jury was instructed on the defendant’s knowing and intentional cause of great bodily harm, for which there was no basis in the accusatory pleading. 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. State v. Von Deck, 607 So. 2d 1388 (Fla.1992); Brown v. State, 206 So. 2d 377, 383 (Fla.1968). For this reason, the jury charge was erroneous, and the defendant is entitled to a new trial on only the lesser included offense of aggravated battery. This analysis obviates any reason to reach the defendant’s remaining point. Accordingly, the judgment of conviction is reversed and the cause remanded for new trial.
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Andrews v. State, 679 So. 2d 859 (Fla. 1st DCA 1996)…section 784.045(l)(a)l instruction. It is error to give an instruction on a permissive lesser-included offense unless the accusatory pleading alleges commission of the lesser offense. State v. Von Deck, 607 So. 2d 1388 (Fla.1992); Watkins v. State, 632 So. 2d 184 (Fla. 3d DCA 1994). The appellant is therefore entitled to a new trial on the lesser-included offense of [*860] aggravated battery. In light of the foregoing, we need not address the cross appeal. The judgment of conviction is reversed and the cas…
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Lester v. State, 25 So. 3d 623 (Fla. 3d DCA 2009)…nd degree murder. It alleged that the defendant killed the victim by punching him in the face. Killing the victim by punching him in the face sufficiently alleges great bodily harm.1 To support his argument, the defendant relies on Watkins v. State, 632 So. 2d 184 (Fla. 3d DCA 1994). We distinguish Watkins and reject the defendant’s contention. We have taken judicial notice of the briefs in the Watkins case, and find that there is an error in the opinion. The defense brief and the State’s brief both agree th…
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Giles Levesque v. State, 778 So. 2d 1049 (Fla. 4th DCA 2001)…eading alleges all the elements of the lesser offense. See K.H. v. State, 763 So. 2d 1187, 1188 (Fla. 4th DCA 2000); Lawrence v. State, 685 So. 2d 1356, 1357 (Fla. 2d DCA 1996); Andrews v. State, 679 So. 2d 859 (Fla. 1st DCA 1996); Watkins v. State, 632 So. 2d 184 (Fla. 3d DCA 1994). Accordingly, the trial court erred by improperly instructing the jury that Levesque could be found guilty of aggravated battery. The state argues that Levesque raises this issue for the first time on appeal. At trial, Levesque a…
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
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. von Deck, 607 So. 2d 1388 (Fla. 1992)