Opinion
No. 76-2182.
October 4, 1977.
Appeal from the Circuit Court, Indian River County, Royce R. Lewis, J.
Richard L. Jorandby, Public Defender, Nikki Clark, Legal Intern, and Frank B. Kessler, Chief, Appellate Div., West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, Anthony J. Golden and Basil S. Diamond, Asst. Attys. Gen., West Palm Beach, for appellee.
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.