HELEN ANDREWS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the information did not sufficiently allege aggravated battery by causing great bodily harm, making the jury instruction on that theory erroneous.
The appellant was charged with attempted first-degree murder. The trial court instructed the jury on aggravated battery, including a theory of causing…
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ALLEN, Judge.
The appellant challenges her conviction for aggravated battery, a permissive lesser-included offense of attempted first degree murder, the crime with which she was charged. Because the information did not sufficiently allege commission of aggravated battery by causing great bodily harm, the trial court erred in instructing the jury on this theory. Accordingly, we reverse the conviction.
The appellant was tried on an information charging her with attempted first degree murder by stabbing the victim with a knife to effect the appellant’s premeditated intent to kill. Over defense objection, the trial court instructed the jury on alternative theories as to the permissive lesser-included offense of aggravated battery. Instructions were given as to aggravated battery by causing great bodily harm, as proscribed by section 784.045(1)(a)1, Florida Statutes (1993), and aggravated battery by using a deadly weapon, as proscribed by section 784.045(1)(a)2, Florida Statutes (1993). Without referencing the theory upon which its decision was based, the jury found the appellant guilty of aggravated battery.
The information sufficiently asserts facts showing that the appellant committed aggravated battery by using a deadly weapon. But it does not assert, except through inference, facts showing that the appellant committed aggravated battery by causing great bodily harm. Therefore, the information provided no basis for the 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 aggravated battery. In light of the foregoing, we need not address the cross appeal.
The judgment of conviction is reversed and the case is remanded.
MINER and LAWRENCE, JJ., concur.
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Farley v. State, 740 So. 2d 5 (Fla. 1st DCA 1999)…d offense unless both the accusatory pleading and the evidence support the commission- of that offense. Id. at 1389, citing Brown v. State, 206 So. 2d 377, 383 (Fla.1968). Von Deck, 607 So. 2d at 1389. Additionally, this court, in Andrews v. State, 679 So. 2d 859 (Fla. 1st DCA 1996), reversed a conviction for a permissive lesser included offense because the information did not sufficiently allege the elements except through inference. Id., citing Von Deck. [*7] In the ease at bar, the State’s information did…
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Phillips v. State, 874 So. 2d 705 (Fla. 1st DCA 2004)…s knife “in a rude, careless, angry or threatening manner,” an essential element of the offense under section 790.10, Florida Statutes. Our decisions since Von Deck have consistently adhered to the rulings in that case. See, e.g., Andrews v. State, 679 So. 2d 859 (Fla. 1st DCA 1996); Farley v. State, 740 So. 2d 5 (Fla. 1st DCA 1999). We note that our decision in Smith v. State, 435 So. 2d 961 (Fla. 1st DCA 1983), issued prior to Von Deck, did not conform to the holdings of Von Deck or our later cases cited a…
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Lester v. State, 25 So. 3d 623 (Fla. 3d DCA 2009)…y instruction on aggravated battery by reason of the defendant’s knowing and intentional causing of great bodily harm because there was no allegation of great bodily harm in the accusatory pleading. Watkins, 632 So. 2d at 185.2 See Andrews v. State, 679 So. 2d 859 (Fla. 1st DCA 1996) (where defendant was charged with attempted first degree murder by stabbing the victim with a knife, [*625] court should not have given an instruction on the lesser offense of aggravated battery by causing great bodily harm, beca…
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- State v. von Deck, 607 So. 2d 1388 (Fla. 1992)
- Handy Watkins v. State, 632 So. 2d 184 (Fla. 3d DCA 1994)