Smith v. State

MILLS, Judge.

Smith was charged with aggravated battery. The jury found him guilty of improper exhibition of a firearm, a lesser included offense. He contends the trial court erred in charging the jury on the lesser included offense and in denying his motion for arrest of judgment. We affirm.

Improper exhibition of a firearm is a category 2 lesser included offense of aggravated battery which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Florida Standard Jury Instructions in Criminal Cases, 2d Ed., pages 257 and 260.

To determine if an…