Opinion
No. 2D00-322.
Opinion filed April 4, 2001.
Appeal from the Circuit Court for Hillsborough County; John M. Gilbert, Judge.
Reversed in part, Affirmed in part, and Remanded.
James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
The trial court adjudicated P.R. delinquent for aggravated battery with a deadly weapon and aggravated assault and committed him to a level six program. P.R. appeals only his adjudication of delinquency for aggravated assault. We reverse the adjudication of delinquency for aggravated assault.
P.R. argues, and the State concedes, that the State did not prove the element of a well-founded fear of imminent violence necessary for an aggravated assault conviction. See § 784.011(1), Fla. Stat. (1999); State v. Von Deck, 607 So.2d 1388, 1389 (Fla. 1992); O.D. v. State, 614 So.2d 23, 24 (Fla. 2d DCA 1993). At trial, the State introduced evidence that P.R. approached the victim from behind and hit the victim's head with a chair. The undisputed testimony at trial was that the victim was unaware that P.R. was about to hit him. When the prosecutor asked the victim whether he was in fear of being hit when P.R. picked up the chair, the victim responded, "I didn't know he was going to do nothing." Therefore, we reverse P.R.'s adjudication for aggravated assault, affirm his adjudication for aggravated battery with a deadly weapon, and remand for reconsideration of the disposition.
ALTENBERND, A.C.J., and CASANUEVA and DAVIS, JJ., Concur.