King v. State

839 So. 2d 865, 2003 Fla. App. LEXIS 3137, 2003 WL 1030050

Opinion

PER CURIAM.

We reverse appellant’s conviction for indecent assault on a child under sixteen years of age because the trial court erred in denying appellant’s requested jury instruction on battery. As battery is a category two lesser included offense of indecent assault, and the information and evidence support the lesser included offense is within the charged offense, the court was required to give the instruction upon appellant’s request. See Biles v. State, 700 So.2d 166, 167 (Fla. 4th DCA 1997). Here, both the pleadings and the evidence supported a battery instruction.

Reversed and remanded for a new trial.

WARNER, SHAHOOD and TAYLOR, JJ., concur.