Florida District Courts of Appeal, 1985

Carter v. State

Carter v. State
Florida District Courts of Appeal · Decided January 23, 1985 · Fleet, Hersey, Leonard, Walden
464 So. 2d 1227; 10 Fla. L. Weekly 237; 1985 Fla. App. LEXIS 12056 (Southern Reporter, Second Series)

Carter v. State

Opinion of the Court

PER CURIAM.

Alford Lester Carter was charged and convicted of attempted first degree murder. He appeals. We reverse and remand for a new trial.

Reversible error was committed when the trial court refused to grant Carter’s repeated requests for a jury instruction on the necessarily lesser included offense of aggravated battery. The information and evidence supports the offense of aggravated battery. The problem was not cured by the giving of a charge on attempted second degree murder inasmuch as the ingredients of the two lesser charges are materially different.

We reverse upon authority of State v. Bruns, 429 So.2d 307 (Fla. 1983), State v. Abreau, 363 So.2d 1063 (Fla. 1978), and Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978).

Reversed and remanded for a new trial.

HERSEY and WALDEN, JJ., and FLEET, J. LEONARD, Associate Judge, concur.

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