D. C. G., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile was adjudicated delinquent for assault and battery, but was charged only with aggravated assault. The court reversed and remanded because assault and battery was not a lesser included offense of the charge as pleaded, though bare assault was.
Assault and battery is not a lesser included offense of aggravated assault under the charge as pleaded. The judgment of delinquency cannot stand as written because it is based on a crime not included in the accusatory pleading. However, bare assault is a lesser included offense of aggravated assault, so the case is remanded to modify the judgment to base delinquency on bare assault.
[1] Assault and battery is a lesser included offense of aggravated assault when the accusatory pleading and evidence support it.
[2] A judgment adjudicating a child delinquent cannot stand if it is based on a crime not included in the accusatory pleading.
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“assault and battery is a lesser included offense on a charge of aggravated assault falls under Category 4 of Brown v. State, Fla., 206 So. 2d 377 (1968) — offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence”
Establishes the legal standard that assault and battery's status as a lesser included offense depends on the specific charge and evidence presented
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe appellant, a child, was charged by affidavit with committing aggravated assault. At trial, evidence established that the child committed assault a…
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McCORD, Judge.
This is an appeal from a judgment adjudicating appellant a delinquent child by reason of the fact that he committed an assault and battery.
Appellant contends that he was not properly adjudicated a delinquent child because assault and battery was not a lesser included offense of the offense with which he was charged. The affidavit, the accusatory pleading in the case, charged appellant with being a delinquent child in that “he is alleged to have committed the offense of aggravated assault.” When we consider the most recent pronouncement of the Supreme Court in State v. Terry, Fla., 336 So. 2d 65, opinion filed February 25, 1976, on the matter of lesser included offenses, it is apparent that the crime of assault and battery is a lesser included offense on a charge of aggravated assault falls under Category 4 of Brown v. State, Fla., 206 So. 2d 377 (1968) — offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Here, although the evidence fully supports battery, the charge does not. It only charges assault. Thus, the judgment as written cannot stand as the adjudication of delinquency was for a crime not included in the accusatory pleading. Since, however, the trial judge did find appellant guilty of assault and battery, and bare assault is a lesser included offense of aggravated assault, we remand to the trial court with directions to modify the judgment of delinquency to base it upon bare assault rather than assault and battery. We consider such procedure to be proper in the light of the established analogous procedure of directing the entry of a judgment of conviction for petit larceny upon quashal of a judgment of conviction for grand larceny when the evidence does not establish a value of more than $100 for the property taken. See Negron v. State, Fla., 306 So. 2d 104 (1975).
Reversed and remanded.
RAWLS, Acting C. J., and SMITH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Ozzie Joseph Negron and Teresa Negron v. State, 306 So. 2d 104 (Fla. 1974)
- State v. Terry, 336 So. 2d 65 (Fla. 1976)