ROSS HALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
PER CURIAM.
Appellant appeals the judgment and sentence entered on his conviction of aggravated assault because the trial court did not instruct the jury on attempted aggravated assault.
The state charged appellant with aggravated assault and obstructing or opposing an officer with violence. At trial, the court instructed the jury on aggravated assault, obstructing a police officer with violence, simple assault, improper exhibition of a firearm, and obstructing a police officer without violence. Defense counsel requested an instruction on attempted aggravated assault. The court denied this request. Thereafter, the jury found appellant guilty of aggravated assault and obstructing an officer without violence.
Under Florida Criminal Procedure Rule 3.510 the trial court must charge on an attempt to commit a crime if such attempt is also an offense, and we cannot consider its failure to do so to be harmless error. Lomax v. State, 345 So. 2d 719 (Fla.1977); Irving v. State, 337 So. 2d 1014 (Fla.2d DCA 1976).
The judgment and sentence are reversed and the cause remanded for a new trial.
HOBSON, Acting C. J., and GRIMES and OTT, JJ., concur.
PER CURIAM.
In a petition for rehearing the state argues that in logic there can be no crime of attempted aggravated assault. See Hutchinson v. State, 315 So. 2d 546 (Fla.2d DCA 1976). Thus, if the attempt to commit the crime charged does not constitute a separate offense, it would not be error to fail to give an instruction on attempt. King v. State, 339 So. 2d 172 (Fla.1976).
This contention overlooks the fact that in State v. White, 324 So. 2d 630 (Fla.1975), our supreme court observed that one whose presence never became known to his intended victim because of an unsuccessful attack from behind could be prosecuted for attempted assault. If attempted assault is a crime, then obviously attempted aggravated assault would also be a crime where a weapon was used. If the attempt to commit the crime charged is a separate offense, it makes no difference that the facts of the case do not warrant the conclusion that the charged crime was not consummated. Lomax v. State, supra.
The petition for rehearing is denied.
HOBSON, Acting C. J., and GRIMES and OTT, JJ., concur.
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McCRAY v. State, 397 So. 2d 1229 (Fla. 3d DCA 1981)…unishment if they were unsuccessful in their attempt to inflict injury. The Legislature did not intend to allow such acts to go unpunished, however. The [*1231] general ‘attempt’ statute will reach those situations, [e. s.] See also, Hall v. State, 354 So. 2d 914 (Fla. 2d DCA 1978); Osborn v. State, 345 So. 2d 755 (Fla. 4th DCA 1977); Irving v. State, 337 So. 2d 1014 (Fla. 2d DCA 1976), cert. denied, 348 So. 2d 953 (Fla.1977). There is therefore a perfectly reasonable explanation, in accordance with the sup…
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Fredericks v. State, 675 So. 2d 989 (Fla. 1st DCA 1996)…verdict in the case before us amounted to an acquittal of the principal charge. Appellant has not been acquitted of the offense of attempted aggravated assault, which, as argued by the state, is an offense under Florida Statutes. See Hall v. State, 354 So. 2d 914 (Fla. 2d DCA 1978). We hold that the appropriate remedy, therefore, is a new trial on the offense of attempted aggravated assault. REVERSED and REMANDED for new trial in accordance with the foregoing opinion and decision. MINER and MICKLE, JJ., an…
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Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA 1981)…tate, 355 So. 2d 1227 (Fla.3d DCA 1978) (affirming judgment of conviction for attempted second-degree arson, notwithstanding that second degree arson requires proof of damage to a structure); State v. White, 324 So. 2d 630 (Fla.1976); Hall v. State, 354 So. 2d 914 (Fla.2d DCA 1978) (attempted assault is offense, notwithstanding that assault requires proof that victim was placed in fear of imminent violence). . “If the offense attempted ... is ... any burglary, the person convicted shall be guilty of a felony…
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- Lomax v. State, 345 So. 2d 719 (Fla. 1977)
- Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975)
- State v. White, 324 So. 2d 630 (Fla. 1975)
- King v. State, 339 So. 2d 172 (Fla. 1976)
- Irving v. State, 337 So. 2d 1014 (Fla. 2d DCA 1976)