Martin v. State

A jury trial found appellant guilty of aggravated battery evidencing prejudice. With regard to the prejudice necessary to convict, the trial court charged the jury with a jury instruction similar to the one we disapproved in Abbott v. State, 705 So.2d 923, 924-25 (Fla. 4th DCA 1997). Based on Abbott, we reverse. However, this insufficiency does not require our granting a new trial to appellant who was properly convicted of aggravated battery. As in Abbott, we reverse for resen-tencing only to remove the enhancement under section 775.085, Florida Statutes (1995). See id. at 925.

We affirm the…