LEO JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Leo Jenkins was convicted of aggravated assault and carrying a concealed weapon without a license. The Fourth District Court of Appeal reversed both convictions, holding that the trial court erred by excluding evidence of the alleged victim's prior assault on Jenkins two days earlier, and erred in instructing the jury that manual possession of a firearm without a license was a lesser included offense.
The court reversed both convictions. Evidence of Robinson's prior assault on Jenkins two days before should have been admitted because it supported Jenkins's self-defense claim and could be used to establish Robinson's bias against Jenkins on cross-examination. Additionally, manual possession of a firearm without a license is not a necessarily included lesser offense of carrying a concealed weapon and should not have been submitted to the jury.
[1] Evidence of a recent prior violent assault by the victim upon the defendant is admissible when the evidence is conflicting as to who initiated the altercation and the pri…
[2] A defendant may introduce evidence of a victim's recent prior assault to bolster the credibility of the defendant's claim of self-defense.
Previewing 2 of 5 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“Jenkins took the position that Robinson assaulted him on March 18 and to bolster the credibility of that position was entitled to show that Robinson had attacked him in the same fashion just two days before.”
Establishes the relevance of prior assault evidence to support a self-defense claim by showing the victim's propensity for violence
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn March 16, 1976, Jenkins claimed he was assaulted and robbed by Joseph Robinson. Two days later, on March 18, 1976, Jenkins was charged with assault…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Self-Defense Claim cases and more on FLexlaw
ANSTEAD, Judge.
The appellant, Leo Jenkins, appeals his conviction of aggravated assault and possession of a pistol without a license, claiming error in the trial court’s exclusion of evidence as to his previous altercations with the alleged victim of the assault. We reverse.
Jenkins was charged with having assaulted Joseph Robinson on March 18, 1976. In defense Jenkins claimed he acted solely to defend himself from an assault by Robinson. Both on cross-examination of Robinson and in his own testimony, Jenkins attempted to present evidence that he was assaulted and robbed by Robinson just two days before, on March 16, 1976. Jenkins also proffered the testimony of a police officer who saw the injuries sustained by Jenkins on March 16. The trial court refused to admit any of this testimony and ruled that evidence of any relations between Jenkins and Robinson prior to March 18 was not admissible. We believe the evidence of the previous recent assault by Robinson should have been admitted, for two reasons. Jenkins took the position that Robinson assaulted him on March 18 and to bolster the credibility of that position was entitled to show that Robinson had attacked him in the same fashion just two days before. And, Jenkins also maintained that Robinson was biased against him and gave false testimony against him. On cross-examination, Jenkins was entitled to try to establish Robinson’s bias by the recent assault.1
The First District in dealing with a similar situation has held:
. . it is equally erroneous to exclude from evidence testimony concerning a recent violent assault made by a deceased upon the person of a defendant of such nature as might have resulted in death or serious bodily injury. This is particularly true when the evidence is conflicting upon the question as to who began the difficulty, and such prior assault tends to explain or give meaning to the words or actions of the deceased which occurred immediately prior to the killing, and tends to justify the defendant’s apprehension that he was in danger of death or bodily injury.2
Several witnesses testified that Jenkins was the aggressor in the March 18 fight, but Jenkins testified to the contrary. This testimony is sufficient to create an issue. It may be that a jury will again find Jenkins’ testimony unbelievable, even with evidence of the previous assault. It may even be that the evidence of the previous assault will be construed as giving Jenkins a motive for later attacking Robinson and hence work against Jenkins. But these are all matters for a jury to decide, not this court.
Jenkins was also charged with carrying a concealed weapon. He claims error by the trial court in instructing the jury that manual possession of a pistol without a license was a lesser included offense. We agree. Manual possession of a firearm without a license is not a necessarily included lesser offense of carrying a concealed weapon. In addition, no allegation was made in the charging document of this offense and no proof was adduced at trial.
Accordingly, the judgment of conviction for aggravated assault is hereby reversed for a new trial; and the judgment of conviction for manual possession of a pistol without a license is hereby reversed with directions that the conviction be vacated.
DOWNEY, J., and DEAN, ROY E., Associate Judge, concur. . McDuffie v. State, 341 So. 2d 840 (Fla. 2d DCA 1977).
. Coker v. State, 212 So. 2d 648 (Fla. 1st DCA 1968).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Smith v. Hooligan's PUB & Oyster BAR, Ltd., 753 So. 2d 596 (Fla. 3d DCA 2000)…ver accidental death benefits, “[t]he question of whether a death is accidental or whether the decedent was the aggressor or committing an assault at the time of his death is, by its very nature a question of fact [for the jury]”); Jenkins v. State, 349 So. 2d 1191, 1192 (Fla. 4th DCA 1977)(resolution of conflicting testimony concerning identity of aggressor in fight was question for jury). Thus, we find it was error to allow Hooligan’s expert to testify in this manner. Hooligan’s concedes in its Answer Brief…
-
Ford v. State, 484 So. 2d 104 (Fla. 4th DCA 1986)…PER CURIAM. Affirmed upon authority of Rucker v. State, 350 So. 2d 811 (Fla. 4th DCA 1977); Jenkins v. State, 349 So. 2d 1191 (Fla. 4th DCA 1977). DOWNEY, GLICKSTEIN and WALDEN, JJ., concur.…
-
Boshears v. State, 371 So. 2d 725 (Fla. 1st DCA 1979)…t did not err in restricting certain discovery and cross-examination of the victim because there was no showing that the excluded matter had any relevance to the disputed issues in the trial or to the victim’s credibility. Contrast Jenkins v. State, 349 So. 2d 1191 (Fla. 4th DCA 1977); Lombardi v. State, 358 So. 2d 220 (Fla. 1st DCA 1978). There was error, however, in the court’s failure to specify appellant’s jail-time credit in the sentence. Randall v. State, 352 So. 2d 566 (Fla. 2d DCA 1977). Accordingly,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McDUFFIE v. State, 341 So. 2d 840 (Fla. 2d DCA 1977)
- Isiah Coker v. State, 212 So. 2d 648 (Fla. 1st DCA 1968)