IN THE INTEREST OF J. C. M., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A juvenile was charged with aggravated assault using a deadly weapon (automobile) but adjudicated delinquent of culpable negligence instead. The court reversed, holding that culpable negligence is not a lesser included offense of aggravated assault, and therefore the conviction violated the defendant's right to notice of the charges he could be convicted of.
Culpable negligence is not a lesser included offense of aggravated assault as charged in this case. An adjudication of delinquency based on culpable negligence cannot stand when the defendant was charged only with aggravated assault, as the charging document must apprise a defendant of all offenses of which he may be convicted.
[1] A defendant cannot be convicted of an offense that is not a lesser included offense of the crime with which they were charged in the accusatory pleading.
[2] An accusatory pleading must apprise a defendant of all offenses of which they may be convicted.
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Join FLexlaw to unlock all legal intelligence“An accusatory pleading must apprise a defendant of all offenses of which he may be convicted.”
Establishes the constitutional requirement for notice of charges and the basis for reversal in this case
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Join FLexlaw to unlock all legal intelligenceThe appellant was charged in a delinquency proceeding with unlawfully assaulting a named individual with a deadly weapon (an automobile) without inten…
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DANAHY, Judge.
In this delinquency proceeding appellant was charged with aggravated assault and found guilty of culpable negligence. He contends that his adjudication of delinquency based on that finding was improper because culpable negligence was not a lesser included offense of the crime with which he was charged. We agree and reverse.
The state’s petition, the accusatory pleading in this case, charged that appellant unlawfully assaulted a named individual with a deadly weapon, an automobile, without intent to kill. Such an act constitutes aggravated assault. Section 784.021(l)(a), Florida Statutes (1977). Section 784.011 defines an assault as an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well founded fear in such other person that such violence is imminent.
The crime of culpable negligence consists of exposing another person to personal injury or inflicting actual personal injury through culpable negligence. § 784.-05(1). Our supreme court has defined culpable negligence as “reckless indifference or grossly careless disregard for the safety of others.” State v. Greene, 348 So. 2d 3 (Fla.1977). An accusatory pleading must apprise a defendant of all offenses of which he may be convicted. Robinson v. State, 69 Fla. 521, 68 So. 649 (1915). Thus the adjudication of delinquency in this case may not stand unless culpable negligence is a lesser included offense of the crime charged in the accusatory pleading within the rule set forth in Brown v. State, 206 So. 2d 377 (Fla. 1968). The bottom line of the state’s argument in this case is that to operate an automobile as a deadly weapon in an assault upon a person is to operate an automobile in a culpably negligent manner as to that person; therefore, the allegation that appellant committed an assault with an automobile as a deadly weapon put appellant on notice that he could also be found guilty of culpable negligence. We find that argument without merit and hold that culpable negligence is not a lesser included offense of the crime of aggravated assault as charged in this case. Hidalgo v. State, 364 So. 2d 817 (Fla. 3d DCA 1978).
Reversed.
BOARDMAN, Acting C. J., and SCHEB, J., concur.
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State v. Shorette, 404 So. 2d 816 (Fla. 2d DCA 1981)…since that opinion and conviction of aggravated assault now requires proof of a specific intent to do violence to the person of another. §§ 784.-011, 784.021, Fla.Stat. (1979). See State v. White, 324 So. 2d 630 (Fla.1975). See also J.C.M. v. State, 375 So. 2d 873 (Fla.2d DCA 1979); Russell v. State, 373 So. 2d 97 (Fla. 2d DCA 1979). Generally, intent is not an issue to be decided on a (c)(4) motion to dismiss as it it usually inferred from the surrounding acts and circumstances. State v. J.T.S., 373 So. 2d…
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State v. Jacques Simone, 431 So. 2d 718 (Fla. 3d DCA 1983)…ime of culpable negligence ... which can be defined as manslaughter without the death [or even without any injury if it is subsection (1)...] I think the ‘attempt to manslaughter’ has been specifically covered by the Legislature.”); J.C.M. v. State, 375 So. 2d 873 (Fla. 2d DCA 1979) (crime of culpable negligence consists of exposing another to or inflicting personal injury upon another) (e.s.). Furthermore, we do not believe, in light of the cited authorities, that any other construction of the culpable negl…
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McDANIEL v. State, 566 So. 2d 941 (Fla. 2d DCA 1990)…house with the victim, either knew or reasonably should have known of the infant’s precarious medical situation. “Culpable negligence” is defined as “ ‘reckless indifference or grossly careless disregard for the safety of others.’ ” J.C.M. v. State, 375 So. 2d 873 (Fla. 2d DCA 1979), quoting State v. Greene, 348 So. 2d 3 (Fla.1977). The evidence was overwhelming that appellant was culpably negligent in withholding food or medical treatment from his infant son. For this reason, we find that any Bruton error i…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. Greene, 348 So. 2d 3 (Fla. 1977)
- Robinson v. State, 69 Fla. 521 (Fla. 1915)
- Hidalgo v. State, 364 So. 2d 817 (Fla. 3d DCA 1978)