JOHN A. FOUNTAIN, 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.
The court held that the failure to instruct the jury on lesser-included offenses of aggravated assault and assault was reversible error, even if the defendant was charged as a principal.
Appellant was convicted of robbery and carrying a firearm. He requested jury instructions for aggravated assault and assault, which the trial court re…
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 Aider And Abettor cases and more on FLexlaw
DAKAN, STEPHEN L., Associate Judge.
Appellant seeks to overturn his conviction and sentence for robbery and carrying a firearm in the commission of the robbery. He has raised several points on appeal, only one of which we find has merit.
The theory of the State’s case against Appellant was that he was a principal or “aider and abettor” in the crime. He requested the court to instruct the jury as to the lesser offenses of aggravated assault and assault. The trial court refused to give those requested instructions, but did instruct the jury as to the included offenses of attempted armed robbery, robbery, grand larceny and petit larceny.
There is no question that the offenses of aggravated assault and assault are lesser-included offenses of the main charge. The Appellee contends failure to give instructions as to these offenses is harmless error. In the recent case of Lomax v. State, 345 So. 2d 719 (Fla.1977), the Supreme Court of Florida held that when failure to instruct on a lesser-included offense constitutes error, the harmless error doctrine cannot be invoked. This decision had not been rendered at the time of trial.
We find no legal significance in the fact that Appellant was charged as a principal. Since the failure to instruct the jury on the offenses of aggravated assault and assault was error, we reverse on the authority of Lomax v. State, supra.
Reversed for a new trial in accordance with this opinion.
ANSTEAD and LETTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Blow v. State, 386 So. 2d 872 (Fla. 1st DCA 1980)…pts to commit offenses. (3) Offenses necessarily included in the offense charged. (4) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, (emphasis theirs) . Fountain v. State, 353 So. 2d 608, 609 (Fla. 4th DCA 1973) (trial court’s refusal to give a requested instruction on aggravated assault as lesser included offense of robbery and “carrying a firearm in the commission of the robbery,” held reversible error, the court holding: “There i…
Authorities Cited
- Lomax v. State, 345 So. 2d 719 (Fla. 1977)