O. A., A JUVENILE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile was adjudicated delinquent for participating in an affray after being found not guilty of assault and battery. The court reversed, holding that because assault and battery is a lesser included offense of affray (not the reverse), and because there was no proof the appellant actually participated in the beating, he could not be convicted of affray.
The court held that the appellant cannot be guilty of participating in an affray because there was no proof he participated in the beating. The court determined that assault and battery is a lesser included offense of affray, not vice versa, because an affray requires two or more persons fighting while assault and battery may be committed by one person.
[1] An affray, as defined by common law, requires the fighting of two or more persons in a public place to the terror of the people.
[2] Assault and battery is a lesser included offense of an affray, not the other way around, because an affray necessitates multiple participants while assault and battery ca…
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Join FLexlaw to unlock all legal intelligence“The common law defined an affray as the fighting of two or more persons in a public place, to the terror of the people.”
Establishes the fundamental definition of affray that the court applies to determine the elements required for guilt
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Join FLexlaw to unlock all legal intelligenceA group of persons accosted a victim at Middleton School in Tampa and several group members struck the victim. The appellant, who did not attend Middl…
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GRIMES, Judge.
This is an appeal from an adjudication of delinquency predicated upon a finding of guilt of participating in an affray. Affrays are proscribed by Fla.Stat. § 870.-01(1)(1973).
The victim was accosted by a group of persons at Middleton School in Tampa. Several of the group members struck the victim. Appellant was charged with assault and battery. At the trial, appellant, who did not go to Middleton School, was identified as being with the group. However, no one, including the victim, stated that appellant participated in the beating. The court held there was no proof of assault and battery but found appellant guilty of participating in an affray, as a “lesser included offense.”
The only Florida case cited to us on the subject of affray is Carnley v. State, 1924, 88 Fla. 281, 102 So. 333, in which the court upheld an assault and battery verdict entered upon an information which charged both assault and battery and affray in a single count. Pertinent to the instant case, the court observed:
“The common law defined an affray as the fighting of two or more persons in a public place, to the terror of the people. Our statute merely prescribes the punishment for, and does not attempt to define, an affray; so we must resort to the common-law definition.
“Is assault and battery then embraced within an affray? It has been repeatedly held that an affray by fighting, as defined by the common law and by statutes which substantially follow and denounce the common-law offense, necessarily includes assault and battery, and that an indictment for the former offense is in effect merely for the several assaults and batteries. . . .”
Thus, it appears that assault and battery is a lesser included offense of an affray and not vice versa. One reason for this is that in an affray two or more persons must fight, whereas an assault and battery may be committed by only one person. There was no proof that the appellant participated in the beating. Therefore, he could not be guilty of participating in an affray.
We do not now pass on the question of whether appellant can be retried on a charge of simple assault.
Reversed.
HOBSON, Acting C. J., and BOARD-MAN, J., concur.
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D.L.B. v. State, 707 So. 2d 844 (Fla. 2d DCA 1998)…we also conclude that thé sentence imposed must be clarified and the $50 fine must be stricken. Florida has adopted the common law meaning of affray, which is that affray is fighting in a public place to the terror of the people. See O.A. v. State, 312 So. 2d 202 (Fla. 2d DCA 1975). See also D.J. v. State, 651 So. 2d 1255 (Fla. 1st DCA 1995). In order to overcome a void-for-vagueness challenge, a criminal statute must define the offense “with sufficient definiteness that ordinary [*845] people can understand…
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D.J. v. State, 651 So. 2d 1255 (Fla. 1st DCA 1995)…on of delinquency. Florida has adopted the common law definition of “affray,” which proscribes “the fighting of two or more persons in a public place to the terror of the people.” Carnley v. State, 88 Fla. 281, 102 So. 333 (1924); see O.A. v. State, 312 So. 2d 202 (Fla. 2d DCA 1975). The appellant has argued that the fight was not in a public place, having occurred at a high school that was not open to the public, and further, that the fight was not “to the terror of the people.” Although Florida authority i…
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C. M. v. State, 234 So. 3d 837 (Fla. 2d DCA 2018)
Authorities Cited
- Carnley v. State, 88 Fla. 281 (Fla. 1924)