Curry v. State

ON MOTION FOR REHEARING

LETTS, Judge.

The petition for rehearing is granted. The original opinion is withdrawn and we substitute the following opinion:

The defendant was charged and convicted of robbery. Among other points raised, the defendant contends that the trial court erred in refusing a requested jury instruction on theft, aggravated assault and simple assault. Although the trial court found that there was a total lack of evidence as to the necessarily lesser included offense, case law provides that, upon request, the defendant is entitled to an instruction on necessarily lesser included…