Florida District Courts of Appeal, 1977

Cruce v. State

Cruce v. State
Florida District Courts of Appeal · Decided October 4, 1977 · Anstead, Dauksch, Moore
350 So. 2d 518; 1977 Fla. App. LEXIS 16473 (Southern Reporter, Second Series)

Cruce v. State

Opinion of the Court

PER CURIAM.

To sustain a charge of aggravated assault there must be proof that the victim was in fear of imminent bodily injury. Lopez v. State, 345 So.2d 757 (Fla. 4th DCA 1977). There was no proof of this necessary element offered at the trial of this case. Accordingly, the judgment and sentence are reversed. Since the evidence at trial established that appellant was guilty of battery, a lesser offense necessarily included in the charge upon which the appellant went to trial, we remand this cause to the trial court with directions to enter a judgment and sentence for battery, a first degree misdemeanor. See Clark v. State, 337 So.2d 798 (Fla. 1976).

REVERSED AND REMANDED, with directions.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.

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