WILLIE RICHARDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Richardson was convicted of aggravated assault for shooting Sam Junior Stanley in a bar. The Florida District Court of Appeal, Fourth District affirmed the conviction, rejecting Richardson's arguments that the trial court erred in amending the information to include an alias, failing to instruct on self-defense, and declining to charge the lesser included offense of assault and battery.
The trial court properly amended the information to include the alias under Florida law because the defendant was clearly identified regardless of the name used. No self-defense instruction was required because the defendant's position was that he never fired the gun and knew nothing about it, making self-defense wholly immaterial. Assault and battery was not a proper lesser included offense because the state's entire case rested on the shooting, and if the jury believed the defendant's version that he did not shoot, he was entitled to acquittal without need for a lesser offense instruction.
[1] A court may amend an information to include an alias of the defendant if the defendant is clearly identified as the purported assailant by that alias.
[2] A defendant cannot complain of the failure to instruct on self-defense when their trial position is that they did not commit the act giving rise to the charge.
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“Since there was never any question of self-defense, the appellant's position throughout being that he never even fired the gun and knew nothing about it, he can hardly be heard to complain of the failure to give a wholly immaterial charge.”
Establishes that self-defense instruction was not required where defendant's theory negated any need for such a defense.
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Join FLexlaw to unlock all legal intelligenceRichardson was charged with aggravated assault by shooting Sam Junior Stanley with a revolver in a bar. The evidence was undisputed that Stanley was s…
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ON REHEARING
We granted appellant’s petition for rehearing, upon appellant’s contention that he had requested oral argument and furnished a copy of said request to the office of the Attorney General, but evidently there was no record thereof in the clerk’s office, and therefore oral argument was dispensed with. We have now heard the oral argument, and have further considered appellant’s contentions.
Appellant was charged with aggravated assault, by shooting one Sam Junior Stanley with a revolver. The incident occurred in a bar, and the evidence is undisputed that Sam Junior Stanley was in fact shot with a revolver.
The appellant’s position throughout the trial was that he did not do the shooting, knew nothing of the gun, the shooting was done by some unknown patron of the bar, and all that appellant did was to scuffle, at some point, with Sam Junior Stanley. This was the effect of the appellant’s own testimony.
During the trial, the court amended the information by inserting after the appellant’s name “also known as Doug Johnson”, as a result of the identification of the appellant as being known by the name of “Doug” or “Doug Johnson”. Such amendment was fully justified by Section 1.140 (d) (2) of the Florida Rules of Criminal Procedure, 33 F.S.A., as well as Section 906.08(5), Florida Statutes, F.S.A., since appellant was clearly identified, by whatever name, as the purported assailant.
Appellant further assigns as error the court’s failure to instruct on self-defense and on the lesser included offense of assault and battery.
Since there was never any question of self-defense, the appellant’s position throughout being that he never even fired the gun and knew nothing about it, he can hardly be heard to complain of the failure to give a wholly immaterial charge. As to' the request for a charge on a lesser included offense of assault and battery, the lesser offense must be an essential aspect of the major offense; and for an offense to fall in the category of possible included offenses, such inclusion depends upon the accusatory pleading and the evidence at the trial. Brown v. State, Fla.1968, 206 So.2d 377.
But, a simple assault and battery cannot be properly viewed as a lesser included offense within an aggravated assault accusation, under the facts of this case, since the state’s entire position rested entirely upon the shooting. If appellant did not do the shooting, and disclaimed knowledge of the gun, and the jury believed his version, he was entitled to an acquittal since the “scuffle” was not even a part of the shooting itself, according to appellant himself, and would have been an entirely separate offense, if indeed it even was an offense. Compare Tanner v. State, Fla.App.1967, 197 So.2d 842.
The remaining points on appeal are without substantial merit; and appellant having failed to clearly demonstrate harmful reversible error, the judgment below is affirmed.
WALDEN and MAGER, JJ„ concur.
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Wright v. State, 705 So. 2d 102 (Fla. 4th DCA 1998)…a defendant denies that a battery occurred, or disavows all involvement in a battery, then his defense is irreconcilable with self-defense so that it is proper to refuse an instruction on justifiable use of non-deadly force. See Richardson v. State, 251 So. 2d 570, 571 (Fla. 4th DCA 1971); Wright v. State, 681 So. 2d 852, 853 (Fla. 5th DCA 1996). For example, in Richardson, this court found no error in failing to charge on self-defense where the defendant contended that a shooting was committed by an unknown…
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Udell Shirley Stevens v. State, 383 So. 2d 1156 (Fla. 5th DCA 1980)…involved was actually a .38 Dan Wesson. The trial court denied the motion. But see Lackos v. State, 326 So. 2d 220 (Fla. 2d DCA 1976); Holland v. State, 359 So. 2d 28 (Fla. 3d DCA 1978), cert. den., 367 So. 2d 1124 (Fla. 1979); Richardson v. State, 251 So. 2d 570 (Fla. 4th DCA 1971). The state subsequently nolle prossed that charge. Appellant was then charged by a second Information with possession of a firearm by a convicted felon in violation of Section 790.23, Florida Statutes (1977), in that he had a .3…
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Abbott v. State, 589 So. 2d 943 (Fla. 2d DCA 1991)…e during a barroom brawl. At trial, defendant took the stand and denied ever using a knife on the victim. Under these circumstances, the trial court ruled properly. See Hamilton v. State, 458 So. 2d 863, 865 (Fla. 4th DCA 1984); Richardson v. State, 251 So. 2d 570, 571 (Fla. 4th DCA 1971). See also Mewes v. State, 517 P. 2d 487, 489 (Wyo.1973) (“In both homicide and assault and battery cases where the accused denies the commission of the act he has been held not entitled to an instruction on self-defense_”).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Tanner v. State, 197 So. 2d 842 (Fla. 1st DCA 1967)