BIENVENIDO G. GASTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The defendant argues, and the state concedes, that his conviction of the lesser offense of aggravated assault on a law enforcement officer with a firearm should be reversed because the information did not allege a necessary element, i.e., that the victim had a well-founded fear of imminent violence. See Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995). Therefore, we reverse the conviction on this ground. On remand, the state may prosecute the defendant for the offense of aggravated assault on a law enforcement officer with a firearm or any lesser included offense. See Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995). The defendant may not be retried for attempted first degree murder of a law enforcement officer. Id.
Reversed and remanded.
THREADGILL, C.J., and LAZZARA and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McCLENITHAN v. State, 855 So. 2d 675 (Fla. 2d DCA 2003)…ion only charged the elements of the crime of attempted first-degree murder. The offense of aggravated assault includes the required element that the victim had a well-founded fear of imminent violence. § 784.021, Fla. Stat. (2001); Gaston v. State, 682 So. 2d 581, 581 (Fla. 2d DCA 1996). This element was not included in the information in the present case because attempted first-degree murder does not require the fear element.1 A conviction on a charge not made in the information is a denial of due process.…
Authorities Cited
- Velasquez v. State, 654 So. 2d 1227 (Fla. 2d DCA 1995)
- Efram Jaramillo v. State, 659 So. 2d 1238 (Fla. 2d DCA 1995)