Gaston v. State

682 So. 2d 581, 1996 Fla. App. LEXIS 10910, 1996 WL 592695

Opinion

PER CURIAM.

The defendant argues, and the state concedes, that his conviction of the lesser offense of aggravated assault on a law enforcement officer with a firearm should be reversed because the information did not allege a necessary element, i.e., that the victim had a well-founded fear of imminent violence. See Velasquez v. State, 654 So.2d 1227 (Fla. 2d DCA 1995). Therefore, we reverse the conviction on this ground. On remand, the state may prosecute the defendant for the offense of aggravated assault on a law enforcement officer with a firearm or any lesser included offense. See Jaramillo v. State, 659 So.2d 1238 (Fla. 2d DCA 1995). The defendant may not be retried for attempted first degree murder of a law enforcement officer. Id.

Reversed and remanded.

THREADGILL, C.J., and LAZZARA and FULMER, JJ., concur.