Martin v. State

719 So. 2d 1015, 1998 Fla. App. LEXIS 13881, 1998 WL 765356

Opinion

PER CURIAM.

A jury trial found appellant guilty of aggravated battery evidencing prejudice. With regard to the prejudice necessary to convict, the trial court charged the jury with a jury instruction similar to the one we disapproved in Abbott v. State, 705 So.2d 923, 924-25 (Fla. 4th DCA 1997). Based on Abbott, we reverse. However, this insufficiency does not require our granting a new trial to appellant who was properly convicted of aggravated battery. As in Abbott, we reverse for resen-tencing only to remove the enhancement under section 775.085, Florida Statutes (1995). See id. at 925.

We affirm the remaining issues raised.

WARNER and KLEIN, JJ., and OWEN, WILLIAM C., Jr., Senior Judge, concur.