THOMAS FARLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Farley was convicted of improper exhibition of a deadly weapon as a lesser included offense to aggravated battery and his probation was revoked based on that conviction. The court reversed, holding that the information failed to allege the required elements of improper exhibition (that the weapon was displayed in a rude, careless, angry, or threatening manner) except through inference, which is impermissible under Florida law.
The court reversed the conviction and probation revocation. The information must specifically allege the required elements of improper exhibition (rude, careless, angry, or threatening manner) rather than allowing them to be proven by inference. Additionally, when probation revocation is based solely on a conviction that is subsequently reversed, the revocation must also be reversed.
[1] A jury instruction on self-defense is not required when there is no evidence from which a reasonable person could believe that the defendant acted in self-defense.
[2] Inconsistent defenses are permissible in criminal cases if the proof of one does not necessarily disprove the other.
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Join FLexlaw to unlock all legal intelligence“Before convicting for a lesser offense, the elements of the lesser must be alleged in the information, and there must be proof of those elements at trial.”
Establishes the fundamental requirement that lesser included offense elements must be specifically alleged in the charging document.
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Join FLexlaw to unlock all legal intelligenceFarley was initially charged with battery and other offenses in March 1997 and entered a nolo contendere plea to some charges, receiving two years of …
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BROWNING, J.
Thomas Farley (Farley) appeals his conviction and sentence for improper exhibition of a deadly weapon, a lesser included offense of aggravated battery for which he was charged and tried. Farley contends that his jury should never have been instructed on improper exhibition of a weapon as a lesser included offense to aggravated battery; and that the trial judge erred by revoking his probation based solely upon the jury’s verdict. We agree as to both contentions and reverse.
By information filed March 6, 1997, Farley was charged with battery, resisting arrest without violence, possession of marijuana, possession of paraphernalia, and tampering with evidence. On May 28, 1997, Farley entered a plea of nolo conten-dere to all charges, except the battery and was placed on probation for two years on the felony, and one year for each misdemeanor, concurrent with each other and the felony. By information filed October 23, 1997, Farley was charged with aggravated battery with a knife. On December 16, 1997, an affidavit of violation of probation was filed alleging that Farley committed aggravated battery.
The case proceeded to jury trial on May 5, 1998, and Farley was found guilty of improper exhibition of a deadly weapon as a lesser offense. Farley’s probation was revoked, and he was adjudicated guilty of tampering with evidence and improper exhibition of a weapon and was sentenced to concurrent terms of 11 months and 29 days in jail.
Before convicting for a lesser offense, the elements of the lesser must be alleged in the information, and there must be proof of those elements at trial. Brown v. State, 206 So. 2d 377, 383 (Fla.1968); State v. Von Deck, 607 So. 2d 1388 (Fla. 1992). Thus, the information must allege, and the evidence must prove, the weapon was exhibited in a “rude, careless, angry, or threatening manner.” § 790.10, Florida Statutes. Moreover, the elements must be specifically alleged and cannot be alleged through inference. Von Deck, 607 So. 2d at 1389. In Von Deck, the Florida Supreme Court held that “Florida law is well settled that the elements of an offense cannot be established by mere inference.” Id. at 1389, citing State v. Dye, 346 So. 2d 538, 541 (Fla.1977). The Von Deck court further stated:
Moreover, we expressly have said that an instruction cannot be given on a permissive lesser included 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. In the ease at bar, the State’s information did not allege Farley exhibited a weapon in a “rude, careless, angry, or threatening manner.” The State’s argument that “[u]sing a knife to inflict bodily harm on someone is at the very least exhibiting the weapon in a rude, careless, angry or threatening manner” is an attempt to allege the required elements by inference. This is impermissible under the Florida Supreme Court decisions in Von Deck and Brown, and our decision in Andrews. Thus, the trial court reversibly erred in instructing the jury on the improper exhibition of a dangerous weapon.
As a result of the reversal of Farley’s verdict his revocation of probation must also be reversed. In Stevens v. State, the Florida Supreme Court held that “if a revocation of probation is based solely upon a conviction, and that conviction is subsequently reversed, the revocation must also be reversed.” 409 So. 2d 1051, 1052 (Fla.1982), citing Plummer v. State, 365 So. 2d 1102 (Fla. 1st DCA 1979). In the instant case, the trial judge stated: “With the verdict that’s been returned as well, the court is going to adjudge the defendant guilty of violation of probation as well.” Thus, it appears the trial judge revoked Farley’s probation solely because of the conviction.
For these reasons, Farley’s conviction and sentence and the revocation of his probation were erroneous.
REVERSED.
ALLEN and WEBSTER, JJ., CONCUR.
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Jefferies v. State, 849 So. 2d 401 (Fla. 2d DCA 2003)…rted by the evidence adduced at trial.” State v. Weller, 590 So. 2d 923, 926 (Fla.1991); Epps v. State, 728 So. 2d 761, 762 (Fla. 2d DCA 1999). Thus, the information must allege the essential elements of the crime of felony battery. Farley v. State, 740 So. 2d 5, 6 (Fla. 1st DCA 1999). We reverse because we find that the charging document did not include an essential element of the crime of felony battery, namely, an intentional striking. Manslaughter by culpable negligence is the third of the three possib…
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Phillips v. State, 874 So. 2d 705 (Fla. 1st DCA 2004)…nner,” 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 above, but has not heretofore been expressly overrul…
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Griffis v. State, 848 So. 2d 422 (Fla. 1st DCA 2003)…nt contends also that if we reverse on this first issue, then we also must reverse the orders revoking his probation because those orders are based solely on the reversed conviction. See Stevens v. State, 409 So. 2d 1051 (Fla.1982); Farley v. State, 740 So. 2d 5 (Fla. 1st DCA 1999). Concluding that the erroneous jury instruction constitutes fundamental error under Reed v. State, 837 So. 2d 366 (Fla.2002), we reverse Appellant’s conviction and sentence and remand for a new trial. Although the conviction we a…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. DYE, 346 So. 2d 538 (Fla. 1977)
- State v. von Deck, 607 So. 2d 1388 (Fla. 1992)
- Udell Shirley Stevens, Jr. v. State, 409 So. 2d 1051 (Fla. 1982)
- Andrews v. State, 679 So. 2d 859 (Fla. 1st DCA 1996)
- Ozell Plummer v. State, 365 So. 2d 1102 (Fla. 1st DCA 1979)