Bogard v. State

451 So. 2d 484, 1984 Fla. App. LEXIS 11774

• Court: District Court of Appeal of Florida
• Decided: February 15, 1984
• Docket: No. 83-95
• Status: Published

Opinion

PER CURIAM.

Larry Douglas Bogard was convicted of three criminal offenses, as follows:

Count I — Aggravated Battery.

Count II — Possession of a firearm while engaged in a felony.

Count III — Aggravated Assault.

Having considered the proofs and applied the definition of “lesser included” offenses articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); in accord, Borges v. State, 415 So.2d 1265 (Fla.1983), as well as the more recent analysis in Bell v. State, 437 So.2d 1057 (Fla.1983), we hold that the constituent elements of Section 790.07(1), (2), Florida Statutes (1981), as charged in Count Two are sufficiently similar to those of Section 784.045(l)(b), Florida Statutes (1981), as charged in Count One, to here classify Count Two of the Information as a lesser included offense of that charged in Count One.

Accordingly, we affirm as to Counts One and Three, reverse as to Count Two, and remand with instructions to vacate both the conviction and sentence on Count Two.

Affirmed in part; reversed in part; and remanded.

ANSTEAD, C.J., and HURLEY and WALDEN, JJ., concur.