ROBERT DARRYL PATTERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patterson appeals his aggravated battery with a firearm conviction, arguing the trial court erred by refusing to instruct the jury on improper exhibition of a weapon as a lesser included offense. The appellate court affirmed, holding that no such instruction was required because the accusatory pleading contained no allegations supporting the lesser offense.
The trial court properly refused the lesser included offense instruction because the accusatory pleading contained no allegations supporting improper exhibition. The charges did not violate double jeopardy because they were based on different actions, despite being closely connected in time.
[1] A trial court is not required to instruct the jury on a permissive lesser included offense if the accusatory pleading does not allege all the elements of the lesser offen…
[2] Allegations of committing battery with a firearm do not, in themselves, support a charge of improper exhibition of a weapon.
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“trial court only required to give instruction on permissive lesser included offense where, inter alia, all the elements of the lesser offense are alleged in the accusatory pleading”
Establishes the legal standard for when a lesser included offense instruction must be given
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Join FLexlaw to unlock all legal intelligencePatterson was charged with aggravated battery with a firearm. The only allegations against him in connection with the aggravated battery charge were t…
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PER CURIAM.
AFFIRMED. We find no error by the trial court in refusing to instruct the jury on the offense of improper exhibition of a weapon as a permissive lesser included offense of the charge of aggravated battery with a firearm. The only allegations against appellant in connection with the aggravated battery charge were that he committed the battery with a firearm. By contrast, the lesser offense of improper exhibition occurs when a defendant, “in the presence of one or more persons, exhibit[s] the [weapon] in a rude, careless, angry, or threatening manner, not in necessary self-defense.” Section 790.-10, Florida Statutes (1993). Here, in our view, there were no allegations to support the lesser offense of improper exhibition.1 See State v. Weller, 590 So. 2d 923 (Fla.1991) (trial court only required to give instruction on permissive lesser included offense where, inter alia, all the elements of the lesser offense are alleged in the accusatory pleading).
We also reject appellant’s double jeopardy claim since the two charges against him were based on different actions, even though 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. State, 609 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 known to all, and thus the trial court did not err by instructing the jury on the lesser included offense of improper exhibition).
Although, when read closely, Salters and Hill are distinguishable because it is not clear from the opinions in those cases what the accusatory pleadings alleged, the accusatory pleadings involved in Walker and Smith are analogous to the allegations at bar.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sanders v. State, 795 So. 2d 223 (Fla. 4th DCA 2001)…appeal. Hardy v. State, 705 So. 2d 979, 981 (Fla. 4th DCA 1998). Multiple convictions based on different actions, however, need not amount to double jeopardy, even where the actions are closely connected in space and time. E.g. Patterson v. State, 637 So. 2d 955, 956 (Fla. 4th DCA 1994); Watford v. State, 525 So. 2d 484, 486 (Fla. 1st DCA 1988). This case is distinguishable from Vance v. State, 472 So. 2d 734 (Fla.1985), Green v. State, 706 So. 2d 884 (Fla. 4th DCA 1998), and Canion v. State, 661 So. 2d 93…
Authorities Cited
- State v. Weller, 590 So. 2d 923 (Fla. 1991)
- Smith v. State, 435 So. 2d 961 (Fla. 1st DCA 1983)
- Watford v. State, 525 So. 2d 484 (Fla. 1st DCA 1988)
- Hill v. State, 593 So. 2d 290 (Fla. 2d DCA 1992)
- Walker v. State, 609 So. 2d 106 (Fla. 3d DCA 1992)
- State v. Salters, 634 So. 2d 1095 (Fla. 2d DCA 1994)