N. C., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed conviction for aggravated battery where the robbery charge did not allege the elements of aggravated battery, holding that aggravated battery cannot be a lesser included offense when the charging document lacks those elements.
Aggravated battery is not a valid lesser included offense of robbery when the charging document does not allege all elements of aggravated battery, specifically use of a dangerous weapon or intentional infliction of great bodily harm.
[1] A lesser included offense must be supported by all elements alleged in the charging document; aggravated battery cannot be found as a lesser included offense of robbery w…
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Join FLexlaw to unlock all legal intelligence“Aggravated battery can be a category-two lesser included offense of armed robbery, but it was not here because the language of the count of the information that charged armed robbery did not contain all of the elements of aggravated battery.”
Court applying Cave v. State standard to determine whether aggravated battery was properly charged as lesser included offense
N.C. was charged with robbery for allegedly taking jewelry from Janiris Colon by force, violence, or assault. Evidence showed N.C. and friends attacke…
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HARRIS, Judge.
N.C. was charged under a delinquency petition with robbery in that she, “did ... by force, violence, assault or putting in fear, take away from the person or custody of Janiris Colon,” certain jewelry. The evidence showed that N.C. and certain of her friends pounced upon Janiris, causing her injury, and that someone made off with her jewelry. Although the court found insufficient proof of intent to take the jewelry, it found that N.C. was guilty of aggravated battery. N.C. appeals on the basis that aggravated battery is neither a necessarily lesser included offense nor was it pled in this case. We agree and reverse.
This case is controlled by Cave v. State, 613 So. 2d 454, 455 (Fla.1993), in which the court held:
Moreover, the court below characterized aggravated battery as a category-two lesser included offense of armed robbery. Aggravated battery can be a category-two lesser included offense of armed robbery, but it was not here because the language of the count of the information that charged armed robbery did not contain all of the elements of aggravated battery.
So also in our case. N.C. was neither alleged to have used a dangerous weapon nor to have intentionally caused great bodily harm to Ms. Colon. While a finding of simple battery would seem appropriate, aggravated battery is not sustainable.
REVERSED and REMANDED for further action consistent with this opinion.
GRIFFIN and THOMPSON, JJ., concur.
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Citator
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Wilson v. State, 749 So. 2d 516 (Fla. 5th DCA 1999)…y can be a permissive included offense of armed robbery, it was not in that case “because the language of the count of the information that charged armed robbery did not contain all of the elements of aggravated battery.” Id. See also N.C. v. State, 691 So. 2d 575 (Fla. 5th DCA 1997).7 Similarly, the trial court in this case properly ruled that there were insufficient allegations in Count I, DUI manslaughter, to authorize an instruction on the permissive lesser included offense of vehicular homicide. As for…
Authorities Cited
- Foster v. State, 613 So. 2d 454 (Fla. 1993)
- Cave v. State, 613 So. 2d 454 (Fla. 1993)