Tolbert v. State, 474 So. 2d 5 (Fla. 3d DCA 1985). · Go Syfert
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Tolbert v. State, 474 So. 2d 5 (Fla. 3d DCA 1985). Cases Citing This Book View Copy Cite
7 citation events (1 in the last 25 years) across 1 distinct court.
Strongest positive: Tolbert v. State (fladistctapp, 1996-08-14)
Top citers, strongest first. 2 distinct citers.
cited Cited as authority (rule) Tolbert v. State
Fla. Dist. Ct. App. · 1996 · confidence medium
Hipp v. State, 509 So.2d 1208, 1210 (Fla. 4th DCA 1987); Tolbert v. State, 474 So.2d 5, 6 (Fla. 3d DCA 1985); Fla. Std.
cited Cited "see" Mateo v. State
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Tolbert v. State, 474 So.2d 5, 6 (Fla. 3d DCA 1985).
Theodis TOLBERT, Appellant,
v.
The STATE of Florida, Appellee.
84-1137.
District Court of Appeal of Florida, Third District.
Jul 30, 1985.
474 So. 2d 5
Schwartz, C.J., and Hendry and Daniel S. Pearson.
Cited by 5 opinions  |  Published

[*6] Bennett H. Brummer, Public Defender and Henry H. Harnage, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.

PER CURIAM.

We reverse the defendant's conviction for aggravated battery upon a holding that where, as here, the defendant was charged with sexual battery, the not-necessarily-included offense of aggravated battery is a lesser offense of sexual battery only if the elements of Section 784.045, Florida Statutes (1983), are alleged in the charging document.[1]Cf. Bragg v. State, 433 So.2d 1375 (Fla.2d DCA 1983); Gay v. State, 432 So.2d 602 (Fla.2d DCA 1983). Since the information in the present case failed to allege an aggravated battery, the fact that such an offense may have been shown by the evidence is irrelevant; a defendant cannot stand convicted of a crime for which he was not charged. Ray v. State, 403 So.2d 956 (Fla. 1981).

Reversed.

1 For example, in the instant case, because no deadly weapon was used, the information should have alleged that the defendant in committing the sexual battery intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement to the victim.