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…