Herrington v. State

524 So. 2d 509, 13 Fla. L. Weekly 1106, 1988 Fla. App. LEXIS 1837, 1988 WL 44451

Opinion

GUNTHER, Judge.

We affirm the conviction and sentence entered against the appellant. As to the first issue, the trial court did not commit error by failing to give an instruction on third degree murder as requested. In order to support an instruction on a category two offense, the Information must allege the elements of the category two lesser offense. See Brown v. State, 206 So.2d 377 (Fla.1968); White v. State, 412 So.2d 28 (Fla. 2nd DCA 1982). Third degree murder was a category two offense in the instant case. Since the Information did not allege the elements of third degree murder, appellant was not entitled to an instruction on that offense. In all other respects, we affirm.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.