Opinion
No. 88-2921.
February 28, 1990.
Appeal from the Circuit Court for St. Lucie County; L.B. Vocelle, Judge.
Richard L. Jorandby, Public Defender and Susan D. Cline, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Sylvia H. Alonso, Asst. Atty. Gen., West Palm Beach, for appellee.
Ervin Stubbs appeals from a conviction for aggravated assault with a deadly weapon.
We reverse and remand for a new trial. There were three errors:
1. The trial court erred in denying appellant's request for the jury to be instructed on the necessarily lesser included offense of simple assault, State v. Wimberly, 498 So.2d 929 (Fla. 1986) and Lomax v. State, 345 So.2d 719 (Fla. 1977).
2. As conceded by the State, the judgment is in error in classifying the offense a second degree felony. It is a third degree felony.
3. As conceded by the State, the judgment improperly imposed court costs when such issue was never addressed by the trial court.
REVERSED and REMANDED for further proceedings consistent herewith.
DOWNEY, ANSTEAD and WALDEN, JJ., concur.