STATE OF FLORIDA, APPELLANT/CROSS-APPELLEE,
v.
TERRY W. SALTERS, APPELLEE/CROSS-APPELLANT
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The court held that the trial court erred in instructing the jury on aggravated assault as a lesser included offense because the information did not allege all elements of that crime. The court affirmed the order granting a new trial.
Salters was charged with aggravated battery with a firearm and convicted of aggravated assault with a firearm. The state appealed the granting of a ne…
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THREADGILL, Judge.
The state appeals an order granting Terry W. Salters’ motion for new trial. Sal-ters was charged with aggravated battery with a firearm and convicted of aggravated assault with a firearm. The trial court correctly granted the motion for new trial because the court failed to instruct the jury on a charge of improper exhibition of a firearm, a permissive lesser included offense. See Walker v. State, 609 So. 2d 106 (Fla. 3d DCA 1992) and Smith v. State, 435 So. 2d 961 (Fla. 1st DCA 1983). We therefore affirm the order granting a new trial.
On cross-appeal Salters contends that the trial court erred in instructing the jury on the lesser charge of aggravated assault with a firearm. We agree. In order for aggravated assault to be a lesser included offense of aggravated battery, the information must allege all of the elements of aggravated assault. Gay v. State, 432 So. 2d 602 (Fla. 2d DCA 1983). The information in this case did not allege an act by Salters which created a well-founded fear that violence to the victim was imminent as required by section 784.021, Florida Statutes (1991). It was therefore error to convict Salters of an offense that was not charged in the information.
On remand, the state cannot retry Salters for aggravated battery with a firearm because the jury acquitted him of that charge. If, however, the state seeks to retry Salters for aggravated assault with a firearm, it must file a new information alleging all of the elements of that offense. See 432 So. 2d 602.
Affirmed; remanded with directions.
CAMPBELL, A.C.J., and HALL, J., concur.
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Lawrence v. State, 685 So. 2d 1356 (Fla. 2d DCA 1996)…rse that conviction.1 Our holding today does not preclude the state from charging Lawrence with aggravated battery in a new information alleging all of the elements of that offense. Gay v. State, 432 So. 2d 602 (Fla. 2d DCA 1983); State v. Salters, 634 So. 2d 1095 (Fla. 2d DCA 1994). With respect to costs imposed at sentencing, we strike the $2 discretionary cost imposed pursuant to section 943.25(13), Florida Statutes (1993), because it was not orally pronounced. See Reyes v. State, 655 So. 2d 111 (Fla. 2d…
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Patterson v. State, 637 So. 2d 955 (Fla. 4th DCA 1994)…hough the actions were closely connected in time. Cf. Watford v. State, 525 So. 2d 484 (Fla. 1st DCA 1988). ANSTEAD, HERSEY and STONE, JJ., concur. . The following cases, involving similar facts, may conflict with this result: State v. Salters, 634 So. 2d 1095 (Fla. 2d DCA 1994) (where defendant was charged with aggravated battery with a firearm, trial court properly ordered new trial because the court failed to instruct the jury on the permissive lesser included offense of improper exhibition); Walker v.…
Authorities Cited
- GAY v. State, 432 So. 2d 602 (Fla. 2d DCA 1983)
- Smith v. State, 435 So. 2d 961 (Fla. 1st DCA 1983)
- Walker v. State, 609 So. 2d 106 (Fla. 3d DCA 1992)