Opinion
No. 76-2201.
May 2, 1978. Rehearing Denied June 2, 1978.
Appeal from the Circuit Court, Dade County, Paul Baker, J.
Lawrence M. Litus and Joe M. Mitchell, Jr., Melbourne, for appellant.
Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before HENDRY and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
Appellant, defendant below, appeals his conviction and sentence for involuntary sexual battery. He raises three points on appeal, the following point being meritorious:
Whether the trial court erred in refusing to give appellant's requested instruction on the lesser included offenses of involuntary sexual battery.
After reviewing carefully the record, briefs and arguments of counsel, it is our opinion that, based upon the facts of this case, the trial judge should have given the lesser included offenses of involuntary sexual battery in his instruction to the jury, i.e., assault, assault with intent to commit involuntary sexual battery, and assault and battery. See State v. Washington, 268 So.2d 901 (Fla. 1972); Brown v. State, 206 So.2d 377 (Fla. 1968); Wagner v. State, 356 So.2d 867 (Fla. 4th DCA 1978); Allison v. State, 162 So.2d 922 (Fla. 1st DCA 1964).
Accordingly, appellant's conviction and sentence are reversed and remanded for new trial.
Reversed and remanded for new trial.