Michael Smith v. State of Florida

I concur with respect to the holding that the trial court erred in imposing a public defender fee without notice. However, I respectfully disagree with the majority opinion that the trial judge erred in' reducing the charge of aggravated battery to attempted aggravated battery rather than simple battery. Florida Rule of Criminal Procedure 3.510(b) states in pertinent, part that “[t]he judge shall not instruct on any lesser included offense as to which there is no evidence” (emphasis added). In the instant case, I cannot conclude that there was “no evidence” on which a jury could find the…