Bess v. State

Full title: CLIFFORD BESS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fourth District

Date published: Feb 29, 1984

445 So. 2d 716 (Fla. Dist. Ct. App. 1984)

Opinion

No. 83-1304.

February 29, 1984.

Appeal from the Circuit Court, Palm Beach County, Maurice J. Hall, J.

Richard L. Jorandby, Public Defender, and Lawrence Duffy, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Clifford Bess was charged in Count III of an information with sexual battery. He was convicted of aggravated battery, a lesser included offense contained in Count III. He appeals this conviction. We reverse and remand for a new trial.

The trial court declined to charge the jury, although requested, with the lesser included offenses of battery, assault, and aggravated assault. This was error in light of the accusatory pleading and evidence. Harris v. State, 438 So.2d 787 (Fla. 1983); DeLaine v. State, 262 So.2d 655 (Fla. 1972); Rule 3.510(b), Florida Rules of Criminal Procedure.

We reverse and remand for a new trial as to Count III, with the retrial to be limited to the charge of Aggravated Battery and lesser included offenses. Rule 3.640(a), Florida Rules of Criminal Procedure.

BERANEK, DELL and WALDEN, JJ., concur.