Summary
In Smith, we acknowledged the necessity of determining whether the information charges all the essential elements of a lesser — included offense, and whether the proof supports the allegations, before approving an instruction on the lesser — included offense.
Summary of this case from Phillips v. StateOpinion
No. AO-146.
August 5, 1983.
Appeal from the Circuit Court, Leon County, Charles E. Miner, Jr., J.
Michael Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., Richard A. Patterson, Asst. Atty. Gen., for appellee.
Smith was charged with aggravated battery. The jury found him guilty of improper exhibition of a firearm, a lesser included offense. He contends the trial court erred in charging the jury on the lesser included offense and in denying his motion for arrest of judgment. We affirm.
Improper exhibition of a firearm is a category 2 lesser included offense of aggravated battery which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Florida Standard Jury Instructions in Criminal Cases, 2d Ed., pages 257 and 260.
To determine if an offense is properly charged as a category 2 included offense, one looks at the information to determine if all the essential elements of the lesser offense are charged and if the proof supports the allegations. James v. State, 386 So.2d 890 (Fla. 1st DCA 1980).
Smith contends the elements of the lesser included offense are not included in the charge. The charge alleges that Smith committed a battery on Johnson by shooting at Spencer. He does not contend there is a failure of proof.
The issue is whether "by shooting at" alleges "exhibition." We conclude that it does. Firing the pistol makes its presence and character known to all. There is no doubt that a bullet from the pistol struck Johnson.
The trial judge did not err in giving the charge or in denying the motion.
AFFIRMED.
ERVIN, C.J., and LARRY G. SMITH, J., concur.