Carter v. State

464 So. 2d 1227, 10 Fla. L. Weekly 237, 1985 Fla. App. LEXIS 12056

Opinion

PER CURIAM.

Alford Lester Carter was charged and convicted of attempted first degree murder. He appeals. We reverse and remand for a new trial.

Reversible error was committed when the trial court refused to grant Carter’s repeated requests for a jury instruction on the necessarily lesser included offense of aggravated battery. The information and evidence supports the offense of aggravated battery. The problem was not cured by the giving of a charge on attempted second degree murder inasmuch as the ingredients of the two lesser charges are materially different.

We reverse upon authority of State v. Bruns, 429 So.2d 307 (Fla.1983), State v. Abreau, 363 So.2d 1063 (Fla.1978), and Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978).

Reversed and remanded for a new trial.

HERSEY and WALDEN, JJ., and FLEET, J. LEONARD, Associate Judge, concur.