Cruce v. State

District Court of Appeal of Florida

Cruce v. State

350 So. 2d 518, 1977 Fla. App. LEXIS 16473

District Court of Appeal of Florida·Decided October 4, 1977·No. No. 76-2182·Published

Opinion

PER CURIAM.

To sustain a charge of aggravated assault there must be proof that the victim was in fear of imminent bodily injury. Lopez v. State, 345 So.2d 757 (Fla. 4th DCA 1977). There was no proof of this necessary element offered at the trial of this case. Accordingly, the judgment and sentence are reversed. Since the evidence at trial established that appellant was guilty of battery, a lesser offense necessarily included in the charge upon which the appellant went to trial, we remand this cause to the trial court with directions to enter a judgment and sentence for battery, a first degree misdemeanor. See Clark v. State, 337 So.2d 798 (Fla.1976).

REVERSED AND REMANDED, with directions.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.

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PER CURIAM.

To sustain a charge of aggravated assault there must be proof that the victim was in fear of imminent bodily injury. Lopez v. State, 345 So.2d 757 (Fla. 4th DCA 1977). There was no proof of this necessary element offered at the trial of this case. Accordingly, the judgment and sentence are reversed. Since the evidence at trial established that appellant was guilty of battery, a lesser offense necessarily included in the charge upon which the appellant went to trial, we remand this cause to the trial court with directions to enter a judgment and sentence for battery, a first degree misdemeanor. See Clark v. State, 337 So.2d 798 (Fla.1976).

REVERSED AND REMANDED, with directions.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.

Cruce v. State, 350 So. 2d 518, 1977 Fla. App. LEXIS 16473 (Fla. Ct. App. 1977).

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