Schweigel v. State

DAUKSCH, Chief Judge.

Appellant asks us to decide the question of whether the charge of grand theft¹ includes the charge of filing a false and fraudulent claim² as a lesser included offense under the facts of this case.³ We are prepared to answer that question but cannot because the question was never presented to the trial court for its ruling. For us to rule upon a question not presented to the trial judge would be unfair to that judge and against the ruling in State v. Barber, 301 So.2d 7 (Fla.1974).

AFFIRMED.

SHARP, J., and SHARP, G. K., Associate Judge, concur.

1 . Section 812.014, Fla.Stat. (1979).

2 . Section 627.7375(l)(a), Fla.Stat. (1977).

3 . See Brown v. State, 206 So.2d 377 (Fla. 1968), Category 4.