Marion v. State

District Court of Appeal of Florida

Marion v. State

429 So. 2d 40, 1983 Fla. App. LEXIS 18793

CourtDistrict Court of Appeal of Florida

DecidedMarch 9, 1983

DocketNo. 82-1035

StatusPublished

Cited by1 cases

This text of 429 So. 2d 40 (Marion v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marion v. State, 429 So. 2d 40, 1983 Fla. App. LEXIS 18793 (Fla. Ct. App. 1983).

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Opinion

OTT, Chief Judge.

Appellant, charged with attempted first degree murder, was tried and convicted of aggravated battery. He contends the trial judge erred: (1) in not instructing the jury on aggravated assault as a lesser-included offense, and (2) in denying his motion for new trial.

The Schedule of Lesser-included Offenses in Florida Standard Jury Instructions in Criminal Cases lists aggravated assault as a category 2 lesser-included offense of first degree murder. However, our examination of the language of the charging document and the testimony before the trial judge establishes that neither the allegata nor the probata alleged or evidenced that the victims were in fear of imminent violence. This being a necessary element to charge or establish aggravated assault, we hold there was no error in failing to instruct the jury thereon. Dunn v. State, 397 So.2d 748 (Fla. 2d DCA 1981), petition for review denied, 407 So.2d 1103 (Fla.1981).

Finding no merit in the remaining contention, appellant’s judgment of conviction and sentence are AFFIRMED.

BOARDMAN and DANAHY, JJ., concur.

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OTT, Chief Judge.

Appellant, charged with attempted first degree murder, was tried and convicted of aggravated battery. He contends the trial judge erred: (1) in not instructing the jury on aggravated assault as a lesser-included offense, and (2) in denying his motion for new trial.

The Schedule of Lesser-included Offenses in Florida Standard Jury Instructions in Criminal Cases lists aggravated assault as a category 2 lesser-included offense of first degree murder. However, our examination of the language of the charging document and the testimony before the trial judge establishes that neither the allegata nor the probata alleged or evidenced that the victims were in fear of imminent violence. This being a necessary element to charge or establish aggravated assault, we hold there was no error in failing to instruct the jury thereon. Dunn v. State, 397 So.2d 748 (Fla. 2d DCA 1981), petition for review denied, 407 So.2d 1103 (Fla.1981).

Finding no merit in the remaining contention, appellant’s judgment of conviction and sentence are AFFIRMED.

BOARDMAN and DANAHY, JJ., concur.

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429 So. 2d 40, 1983 Fla. App. LEXIS 18793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marion-v-state-fladistctapp-1983.

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