Macri v. State

689 So. 2d 1280, 1997 Fla. App. LEXIS 2725, 1997 WL 129183

Opinion

PER CURIAM.

Convicted of the offense of battery on a law enforcement officer, the appellant Julia Maori complains that the trial court failed to instruct the jury on the necessarily lesser included offense of simple battery as requested by defense counsel. The appellant correctly argues that the trial court had no alternative but to give the instruction and the state, in effect, concedes that it was a per se reversible error. State v. Wimberly, 498 So.2d 929 (Fla.1986); Nelson v. State, 665 So.2d 382 (Fla. 4th DCA 1996); Crapps v. State, 566 So.2d 62 (Fla. 5th DCA 1990).

Accordingly, we vacate the judgement of conviction and remand for a new trial on the charge of battery on a law enforcement officer.

JUDGMENT VACATED; REMANDED.

PETERSON, C.J., and W. SHARP and GOSHORN, JJ., concur.