Marion v. State

OTT, Chief Judge.

Appellant, charged with attempted first degree murder, was tried and convicted of aggravated battery. He contends the trial judge erred: (1) in not instructing the jury on aggravated assault as a lesser-included offense, and (2) in denying his motion for new trial.

The Schedule of Lesser-included Offenses in Florida Standard Jury Instructions in Criminal Cases lists aggravated assault as a category 2 lesser-included offense of first degree murder. However, our examination of the language of the charging document and the testimony before the trial judge establishes that neither the allegata nor the probata alleged or evidenced that the victims were in fear of imminent violence. This being a necessary element to charge or establish aggravated assault, we hold there was no error in failing to instruct the jury thereon. Dunn v. State, 397 So.2d 748 (Fla. 2d DCA 1981), petition for review denied, 407 So.2d 1103 (Fla.1981).

Finding no merit in the remaining contention, appellant’s judgment of conviction and sentence are AFFIRMED.

BOARDMAN and DANAHY, JJ., concur.