D.L., JR., A CHILD, APPELLANT
v.
STATE OF FLORIDA, APPELLEE
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A juvenile was charged with battery and criminal mischief but acquitted of both charges and instead convicted of disorderly conduct. The appellate court reversed, holding that disorderly conduct was neither a necessarily lesser included offense nor a proper lesser included offense based on the charging document, and that a defendant cannot be convicted of a crime for which he was not charged.
Disorderly conduct is not a necessarily lesser included offense of battery or criminal mischief because each crime contains separate and distinct elements not possessed by the others. Additionally, even if disorderly conduct could be considered a lesser included offense based on proof, it cannot be used as a conviction because the charging document did not allege all necessary elements of disorderly conduct, and a defendant cannot be convicted of a crime for which he was not charged.
[1] Disorderly conduct is not a necessarily lesser included offense of battery or criminal mischief.
[2] A crime may be a lesser included offense if its elements are included in the accusatory pleading and sustained by the evidence.
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Join FLexlaw to unlock all legal intelligence“A necessarily lesser included offense is one whose constituent elements are included within the elements of the greater offense.”
Establishes the first test for determining whether a lesser included offense exists—the elemental inclusion test.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged by petition with battery (touching and striking another person against their will) and criminal mischief (damaging a vehicle bel…
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GRIMES, Acting Chief Judge.
Appellant, a juvenile, appeals from an order determining him to be guilty of disorderly conduct.
Appellee filed a two-count petition charging appellant with battery and criminal mischief. The petition provided in pertinent part:
[S]aid child [appellant] ... actually and intentionally did touch and strike another person, to-wit: ... against the will of the said [person] ... in violation of section 784.03, Florida Statutes_
Count II
[S]aid child [appellant] ... wilfully and maliciously did injure and damage property, to-wit: a vehicle belonging to another ..., said damage to said property being greater than two hundred dollars but less than one thousand dollars, in violation of section 806.13, Florida Statutes ....
At the close of trial, appellant was found not guilty of battery, and the trial judge dismissed the criminal mischief charge. However, the court did find appellant guilty of disorderly conduct. On appeal, appellant argues that he could not be found guilty of disorderly conduct because disorderly conduct is not a lesser included offense of the crimes of battery and criminal mischief.
A necessarily lesser included offense is one whose constituent elements are included within the elements of the greater offense. Gaylord v. State, 413 So. 2d 72 (Fla. 2d DCA 1982). A comparison of the elements of battery, section 784.-03, Florida Statutes (1985), and criminal mischief, section 806.13, Florida Statutes (1985), with those of disorderly conduct, section 877.03, Florida Statutes (1985), indicates that each crime contains separate and distinct elements which the other does not possess. See Scott v. State, 453 So. 2d 798 (Fla.1984). Thus, disorderly conduct is not a necessarily lesser included offense of either battery or criminal mischief.
A crime may also be a lesser included offense if its elements are included in the accusatory pleading and sustained by the evidence. Brown v. State, 206 So. 2d 377 (Fla.1968). For purposes of appeal, it was stipulated that sufficient evidence was presented at trial to prove disorderly conduct. However, the charging document failed to allege all of the necessary elements of disorderly conduct. See, e.g., Vitko v. State, 363 So. 2d 42 (Fla. 2d DCA 1978). Regardless of the proof, a defendant cannot stand convicted of a crime for which he was not charged. Ray v. State, 403 So. 2d 956 (Fla.1981).
Reversed.
HALL and SANDERLIN, JJ., concur.
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Chambers v. State, 975 So. 2d 444 (Fla. 2d DCA 2007)…ded offenses, and thus generally prohibits the State from obtaining a conviction for a lesser-included offense, regardless of the proof at trial, unless the charging document alleges all of the necessary elements for that offense. See D.L. v. State, 491 So. 2d 1243 (Fla. 2d DCA 1986). Nevertheless, a defendant may see a benefit in ignoring or inviting such an error, concluding that although a jury may not be inclined to aequit him of any wrongdoing, they may be inclined to disagree that the charge is as seriou…
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C.W. v. State, 861 So. 2d 1243 (Fla. 2d DCA 2003)…2002). The petition for delinquency filed in this case, which recites only the required elements of burglary and grand theft, does not allege that C.W. offered any form of assistance to another or that he had the requisite intent. See D.L. v. State, 491 So. 2d 1243, 1244 (Fla. 2d DCA 1986) (noting that an accusatory pleading can support a conviction only if it alleges “all of the necessary elements” of the offense for which a conviction was obtained). Additionally, we note that the Florida Supreme Court has ch…
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L.C.G. v. State, 91 So. 3d 197 (Fla. 2d DCA 2012)…ses — those which are either necessarily included because their “constituent elements are included within the elements of the greater offense,” or whose “elements are included in the accusatory pleading and sustained by the evidence.” D.L. v. State, 491 So. 2d 1243, 1244 (Fla. 2d DCA 1986). But where the issue is preserved, “it is error to convict a defendant of a crime for which he has not been charged and which is not a lesser-included offense of a charged crime.” C.W. v. State, 861 So. 2d 1243, 1244 (Fla. 2…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Vitko v. State, 363 So. 2d 42 (Fla. 2d DCA 1978)
- Scott v. State, 453 So. 2d 798 (Fla. 1984)
- Gaylord v. State, 413 So. 2d 72 (Fla. 2d DCA 1982)