W.J.W. v. State

446 So. 2d 248, 1984 Fla. App. LEXIS 12229

Opinions

PER CURIAM.

We affirm on the authority of Ray v. State, 403 So.2d 956 (Fla.1981), and Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983). Discharge of a firearm in public, section 790.15, Florida Statutes (1981), is not a necessarily lesser included offense of aggravated battery, section 784.-045(l)(b), Florida Statutes (1981).¹ However, defense counsel withdrew her objection and affirmatively represented to the court that in this case discharge of a firearm in public was a permissibly lesser included offense of aggravated battery. She argued her client should only be found guilty of the lesser offense:

I submit to the analogy, if the court finds that Mr. Whetstone intentionally fired, that it’s insufficient as a matter of law to sustain a conviction of aggravated battery or simple battery but I believe the facts as adduced at trial, the Court may find the evidence was sufficient to sustain a conviction for discharging a firearm in public. (R 94).

After the judge found W.J.W. guilty of the lesser offense, counsel offered no objection. A clearer case of waiver would be difficult to imagine.

AFFIRMED.

ORFINGER, C.J., and SHARP, J., concur. COWART, J., dissents with opinion.

1 . The record sustains the judge’s conclusion that all the elements of the offense of discharge of a firearm in public were in fact proved.