VARNICE FRANKLIN ANDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed murder conviction and held that aggravated assault is not a lesser-included offense of murder in the second degree.
Aggravated assault is not a lesser-included offense of murder in the second degree, and therefore the trial court properly refused to instruct the jury on that charge.
[1] Aggravated assault is not a lesser-included offense of murder in the second degree and therefore a trial court does not err in refusing to instruct the jury on that charg…
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with and convicted of murder in the second degree for killing his victim by shooting her with a shotgun.…
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Appellant was charged, tried and convicted of the offense of murder in the second degree by killing his victim by shooting her to death with a shotgun. By his sole point on appeal appellant challenges the correctness of the trial court’s order denying his requested jury instruction on the offense of aggravated assault.
At the conclusion of the trial the court properly instructed the jury on the law as it relates to the offense of murder in the second degree, murder in the third degree, manslaughter, justifiable and excusable homicide. Appellant requested in addition to the foregoing instructions a separate instruction on the offense of aggravated assault. It is appellant’s contention that this crime is a lesser offense included in the greater offense of murder in the second degree with which he was charged. It is our view that the trial court correctly refused to instruct the jury on the offense of aggravated assault as requested by appellant. Such a crime is not a lesser offense included within the greater offense of murder. This question was raised before the Second District Court of Appeal in the case of Sadler v. State,1 and decided adversely to appellant’s contention. We agree to the decision in the Sadler case and hold that it controls the question presented here for review.
The judgment of the trial court is affirmed.
CARROLL, DONALD K., Acting C. J., and WIGGINTON and RAWLS, JJ., concur.
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Cited By
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Appell v. State, 250 So. 2d 318 (Fla. 4th DCA 1971)…, we hold that in this case the defendant was entitled to a charge on aggravated assault. Brown v. State, supra; McCullers v. State, Fla.App.1968, 206 So. 2d 30. Contra, Sadler v. State, Fla.App.1969, 222 So. 2d 797; Anderson v. State, Fla.App.1970, 235 So. 2d 738, and Brown v. State, Fla.1971, 245 So. 2d 68. We do not agree that Brown v. State, supra, applies only to the crime of robbery. Going back to the facts, the decedent’s mother visited her son in the hospital about two hours following the shooting. H…
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State v. Anderson, 270 So. 2d 353 (Fla. 1972)…l in the case sub judice would require the instruction, however, where the lesser offense is within the general scope of the charge made. This decision is not compatible with Appell v. State, 250 So. 2d 318 (Fla.App.4th, 1971) and Anderson v. State, 235 So. 2d 738 (Fla.App.1st, 1970), where it was recognized that aggravated assault is within the general scope of the charge of murder, yet is not considered an included offense unless the accusatory pleading spells out that the offense was committed with a deadl…
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Mitchell v. State, 321 So. 2d 108 (Fla. 1st DCA 1975)…ghter, (4) aggravated assault, (5) assault and battery, and (6) bare assault. Instructions were given on the offense charged as well as the lesser degrees of that offense — third degree murder and manslaughter. In Anderson v. State, Fla.App. (1st), 235 So. 2d 738 (1970), this court held that the trial court did not commit error in refusing to give a requested instruction on aggravated assault where the appellant was tried and convicted of murder in the second degree by killing the victim with a shotgun. Ther…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sadler v. State, 222 So. 2d 797 (Fla. 2d DCA 1969)