Peterson v. State , 643 So. 2d 9 ( 1994 )

643 So. 2d 9 (1994)

Gary PETERSON, Appellant,
v.
STATE of Florida, Appellee.

No. 93-00355.

District Court of Appeal of Florida, Second District.

August 26, 1994. Rehearing Denied September 19, 1994.

Malcom V. McKay of Battaglia, Ross, Dicus & Wein, P.A., Tampa, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Kimberly D. Nolen, Asst. Atty. Gen., Tampa, for appellee.

BLUE, Judge.

Gary Peterson contends his conviction for second-degree murder must be reversed because the trial court failed to instruct the jury on third-degree felony murder allegedly arising out of an aggravated assault. There was evidence which would support third-degree murder and therefore, it was error to refuse to give the instruction. See Herrington v. State, 538 So. 2d 850, 851 (Fla. 1989) ("[I]n the case of degree crimes, requested instructions on all lesser degrees that are supported by the evidence must be given regardless of the allegations of the charging document."). We find no merit in the remaining issue raised by Peterson.

Accordingly, we reverse Peterson's conviction and remand for a new trial.

RYDER, A.C.J., and LAZZARA, J., concur.