MELVIN LEE VITKO, 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.
Melvin Lee Vitko was convicted of aggravated assault after the trial court granted his motion for acquittal on attempted robbery and submitted aggravated assault as an alternative to the jury, though it was not charged in the information. The Florida appellate court reversed the aggravated assault conviction, holding that a defendant cannot be convicted of a lesser included offense when the charging document fails to allege all elements of that offense.
A defendant cannot be convicted of a lesser included offense when the information does not allege all elements of that offense. The aggravated assault conviction cannot stand because the information alleged only that appellant carried a deadly weapon but did not allege that he assaulted the victim with a deadly weapon or that he assaulted with intent to commit a felony, both of which are required elements of aggravated assault under Florida law.
[1] A defendant cannot be convicted of a lesser included offense if the charging information fails to allege all the elements of that offense.
[2] Aggravated assault requires an allegation that the assault was committed with a deadly weapon or with intent to commit a felony.
Previewing 2 of 3 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“A defendant may not be convicted of a lesser included offense of the crime charged if the information under which he is tried does not allege all the elements of that offense.”
Establishes the foundational legal principle governing the case and the error committed by the trial court.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn January 4, 1978, Vitko was charged by information with attempted robbery and battery. The information alleged he attempted to take money from Roddi…
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 Assault With Intent To Commit A Felony cases and more on FLexlaw
RYDER, Judge.
Appellant contends that the trial court erred in adjudging him guilty of aggravated assault. We agree.
On January 4, 1978, the State filed a two-count information charging appellant with attempted robbery and battery. The attempted robbery count read as follows:
[Appellant] by force, violence or assault, or putting RODDIE SMITH in fear, willfully and against the will of said ROD-DIE SMITH, did attempt to take money or other property from his person op custody with intent to permanently deprive the said RODDIE SMITH of said money or other property, the said RODDIE SMITH being lawfully entitled to possession of the said money or other property, to wit: lawful money of the United States of America, and during the course of the aforesaid offense, the said MELVIN LEE VITKO did carry a deadly weapon, to wit: a knife; contrary to Chapter 812.13, and against the peace and dignity of the State of Florida. (Empha-sis supplied)
After the court denied a motion to dismiss, appellant pled guilty to battery and went to trial on the attempted robbery count. At trial, the court granted appellant’s motion for a judgment of acquittal as to attempted robbery and sent the case to the jury on a theory of aggravated assault. The court also instructed the jury over appellant’s objection on aggravated battery, and it was that crime of which the jury found appellant guilty. However, after further consideration, the court voided the aggravated battery conviction and adjudged appellant guilty of aggravated assault, sentencing him to ninety days in prison for battery and six months to five years in prison for aggravated assault. The court also assessed costs against him. This timely appeal followed.
We believe that appellant’s conviction for aggravated assault cannot stand. A defendant may not be convicted of a lesser included offense of the crime charged if the information under which he is tried does not allege all the elements of that offense. See Brown v. State, 206 So. 2d 377 (Fla.1968). Here, the information did not allege all the elements of. aggravated as sault. An aggravated assault occurs when a person commits assault with a deadly weapon or with intent to commit a felony. Section 784.021, Florida Statutes (1977). The information alleged only that appellant carried a deadly weapon, not that he assaulted the victim with a deadly weapon.1 Moreover, nowhere did it allege assault with intent to commit a felony.
We also think that the court erred in assessing costs against appellant. Once a court has declared a defendant to be insolvent, as it did in this case, it may not assess costs against him. Cox v. State, 334 So. 2d 568 (Fla.1976).
Appellant has presented two other points, but our disposition of the case makes it unnecessary to consider them further. Accordingly, we affirm the battery conviction and reverse the judgment and sentence for aggravated assault. We also reverse the order assessing costs to appellant, and remand the case for proceedings consistent with this opinion.
HOBSON, Acting C. J., and OTT, J., concur. . Apparently the author of the language used in the attempted robbery count of the information was attempting to track Section 812.-13(2)(a) wherein one carrying a firearm or other deadly weapon during a robbery would be treated, if convicted, as having committed a robbery of the first degree, so that had appellant been convicted of attempted robbery of that degree the penalty of that attempt would be commensurably greater.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
State v. Baker, 452 So. 2d 927 (Fla. 1984)…EHRLICH, Justice. This is a petition to review a decision of a district court. Baker v. State, 431 So. 2d 263 (Fla. 5th DCA 1983). The decision conflicts with the decision of another district court, Vitko v. State, 363 So. 2d 42 (Fla. 2d DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Baker and an accomplice were arrested after an armed robbery. Baker was charged with: Count I, aggravated assault with a deadly weapon, section 784.021(l)(a), Florida Statutes…
-
Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)…a person commits an assault with a deadly weapon or with an intent to commit a felony. § 784.021, Fla.Stat. (1981). The crime contemplates the use of a deadly weapon, i.e., that the accused assaulted the victim with a deadly weapon. Vitko v. State, 363 So. 2d 42 (Fla. 2d DCA 1978). See also State v. McQuay, 403 So. 2d 566 (Fla. 3d DCA 1981). An allegation that the accused “carried a firearm” is insufficient in this regard. Vitko. The remaining question, however, is whether the error in giving the instructi…1 / 2
-
Rodriquez v. State, 443 So. 2d 236 (Fla. 5th DCA 1983)…f the law. . See, e.g., State v. Dunmann, 427 So. 2d 166 (Fla.1983); Bell v. State, 394 So. 2d 979 (Fla.1981); Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983); the dissent in Baker v. State, 431 So. 2d 263 (Fla. 5th DCA 1983); Vitko v. State, 363 So. 2d 42 (Fla. 2d DCA 1978). See also State [*241] v. Gray, 435 So. 2d 816 (Fla.1983); Gay v. State, 432 So. 2d 602 (Fla. 2d DCA 1983). . See also State v. Cantrell, 417 So. 2d 260 (Fla.1982). . See Bartee v. State, 401 So. 2d 890 (Fla. 5th DCA 1981). . A…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- COX v. State, 334 So. 2d 568 (Fla. 1976)