Florida District Courts of Appeal, 1980

Schweigel v. State

Florida District Courts of Appeal · Decided April 23, 1980 · Dauksch, Sharp

382 So. 2d 868; 1980 Fla. App. LEXIS 16005 (Southern Reporter, Second Series)

Opinion of the Court

DAUKSCH, Chief Judge.

Appellant asks us to decide the question of whether the charge of grand theft1 includes the charge of filing a false and fraudulent claim2 as a lesser included offense under the facts of this case.3 We are prepared to answer that question but cannot because the question was never presented to the trial court for its ruling. For us to rule upon a question not presented to the trial judge would be unfair to that judge and against the ruling in State v. Barber, 301 So.2d 7 (Fla. 1974).

AFFIRMED.

SHARP, J., and SHARP, G. K., Associate Judge, concur.

. Section 812.014, Fla.Stat. (1979).

. Section 627.7375(l)(a), Fla.Stat. (1977).

. See Brown v. State, 206 So.2d 377 (Fla. 1968), Category 4.

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