State v. Von Deck, 607 So. 2d 1388 (Fla. 1992). · Go Syfert
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State v. Von Deck, 607 So. 2d 1388 (Fla. 1992). Cases Citing This Book View Copy Cite
“an instruction cannot be given on a permissible lesser included offense unless both the accusatory pleading and the evidence support the commission of that offense.”
64 citation events (39 in the last 25 years) across 4 distinct courts.
Strongest positive: Viveros v. State (fladistctapp, 1997-10-01)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 19 distinct citers.
examined Cited as authority (verbatim quote) Viveros v. State (4×) also: Cited as authority (rule), Cited "see"
Fla. Dist. Ct. App. · 1997 · signal: see · quote attribution · 1 verbatim quote · confidence high
an instruction cannot be given on a permissible lesser included offense unless both the accusatory pleading and the evidence support the commission of that offense.
discussed Cited as authority (rule) Wilson Verela v. the State of Florida (2×)
Fla. Dist. Ct. App. · 2025 · confidence medium
Our Florida Supreme Court has held that “the elements of an offense cannot be established by mere inference.” State v. Von Deck, 607 So. 2d 1388, 1389 (Fla. 1992).
discussed Cited as authority (rule) Timothy Anderson v. State of Florida (2×)
Fla. · 2020 · confidence medium
With respect to the first condition, “Florida law is well settled that the elements of an offense cannot be established by mere inference.” State v. Von Deck, 607 So. 2d 1388, 1389 (Fla. 1992) (citing State v. Dye, 346 So. 2d 538, 541 (Fla. 1977)).
discussed Cited as authority (rule) Timothy Anderson v. State of Florida
Fla. Dist. Ct. App. · 2018 · confidence medium
In that case, the court held that reckless driving was not a lesser-included 4 v. Von Deck, the Florida Supreme Court made clear that “Florida law is well settled that the elements of an offense cannot be established by mere inference.” 607 So. 2d 1388, 1389 (Fla. 1992).
cited Cited as authority (rule) Whyte v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
State v. Von Deck, 607 So.2d 1388, 1389 (Fla.1992).
discussed Cited as authority (rule) C.C. v. State
Fla. Dist. Ct. App. · 2002 · confidence medium
See § 784.011(1), Fla. Stat. (2001); State v. Von Deck, 607 So.2d 1388, 1389 (Fla.1992) (stating that an essential element of any assault is “an act creating a well founded fear in the victim that violence is imminent”).
discussed Cited as authority (rule) Higgs v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2001 · confidence medium
See, e.g., State v. Espinosa, 686 So.2d 1345, 1347 (Fla.1996); State v. Von Deck, 607 So.2d 1388, 1389 (Fla.1992); State v. Daophin, 533 So.2d 761, 762 (Fla. 1988); Jones v. State, 666 So.2d 960 , 964-65 *271 (Fla. 3d DCA 1996); Russ v. State, 612 So.2d 688, 689 (Fla. 2d DCA 1993); Brown v. State, 608 So.2d 114, 116 (Fla. 1st DCA 1992).
cited Cited as authority (rule) P.R. v. State
Fla. Dist. Ct. App. · 2001 · confidence medium
See § 784.011(1), Fla.Stat. (1999); State v. Von Deck, 607 So.2d 1388, 1389 (Fla.1992); O.D. v. State, 614 So.2d 23, 24 (Fla. 2d DCA 1993).
cited Cited as authority (rule) Reynolds v. State
Fla. Dist. Ct. App. · 1993 · confidence medium
State v. Daophin, 533 So.2d 761, 762 (Fla.1988); Von Deck v. State, 593 So.2d 1129, 1130 (Fla. 5th DCA), approved, 607 So.2d 1388, 1389 (Fla.1992).
discussed Cited "see" Graham v. State
Fla. Dist. Ct. App. · 2012 · signal: see · confidence high
See State v. Von Deck, 607 So.2d 1388, 1389 (Fla.1992) (“[A]n instruction cannot be given on a permissive lesser included offense unless both the accusatory pleading and the evidence support the commission of that offense.”); Andrews v. State, 679 So.2d 859, 859 (Fla. 1st DCA 1996) (concluding that an information charging attempted first-degree murder by stabbing with a knife alleged aggravated battery by using a deadly weapon but “[bjecause the information did not sufficiently allege commission of aggravated battery by causing great bodily harm, the trial court erred in instructing the …
discussed Cited "see" Washington v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Farley v. State, 740 So.2d 5, 6 (Fla. 1st DCA 1999) ("Before convicting for a lesser offense, the elements of the lesser offense must be alleged in the information, and there must be proof of those elements at trial.") (citing State v. Von Deck, 607 So.2d 1388 (Fla.1992)).
discussed Cited "see" Washington v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Farley v. State, 740 So.2d 5, 6 (Fla. 1st DCA 1999) (“Before convicting for a lesser offense, the elements of the lesser offense must be alleged in the information, and there must be proof of those elements at trial.”) (citing State v. Von Deck, 607 So.2d 1388 (Fla.1992)).
cited Cited "see" Mateo v. State
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Velasquez v. State, 654 So.2d 1227, 1228 (Fla. 2d DCA 1995) (citing State v. Von Deck, 607 So.2d 1388 (Fla.1992); State v. Gray, 435 So.2d 816 (Fla.1983)).
cited Cited "see" K.A. v. State
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See State v. Von Deck, 607 So.2d 1388 (Fla.1992); B.S.W. v. State, 668 So.2d 1075 (Fla. 2d DCA 1996).
cited Cited "see" Von Deck v. Evander
Fla. Dist. Ct. App. · 1993 · signal: see · confidence high
See Von Deck v. State, 593 So.2d 1129 (Fla. 5th DCA), approved, 607 So.2d 1388 (Fla. 1992).
discussed Cited "see, e.g." State of Iowa v. Gerry Harland Greenland
Iowa · 2025 · signal: see also · confidence medium
Carlson, Iowa Practice: Criminal Law 13 and Procedure § 161, at 49 (1979) (“[A]ll attempted homicides are not assaults . . . .”); see also State v. Von Deck, 607 So. 2d 1388, 1389 (Fla. 1992) (per curiam) (“It is possible to commit an attempted murder without also committing aggravated assault, such as where the victim remains unaware of the attempted murder until some time has elapsed after the commission.”); Commonwealth v. Murray, 742 N.E.2d 1107, 1111 (Mass. App. Ct. 2001) (“It is therefore possible to set in motion events which, although intended to murder, nevertheless fall so…
cited Cited "see, e.g." Donald Vernon Kelley v. State of Florida
Fla. Dist. Ct. App. · 2016 · signal: compare · confidence medium
Compare State v. Von Deck, 607 So.2d 1388, 1389-90 (Fla.1992) (allegation of attempted premeditated murder by shooting does not—by itself—mean victim was put in fear). 2 .
discussed Cited "see, e.g." Zama v. State
Fla. Dist. Ct. App. · 2011 · signal: see also · confidence medium
Thus, “an essential element of any assault is the victim’s well-founded fear of imminent violence.” Johnson v. State, 888 So.2d 691, 693 (Fla. 4th DCA 2004) (quoting Viveros v. State, 699 So.2d 822, 825 (Fla. 4th DCA 1997)); see also State v. Von Deck, 607 So.2d 1388, 1389 (Fla.1992).
discussed Cited "see, e.g." Johnson v. State
Fla. Dist. Ct. App. · 2004 · signal: see also · confidence medium
Thus, "an essential element of any assault is the victim's well-founded fear of imminent violence." Viveros v. State, 699 So.2d 822, 825 (Fla. 4th DCA 1997); see also State v. Von Deck, 607 So.2d 1388, 1389 (Fla.1997).
STATE of Florida, Petitioner,
v.
James VON DECK, Respondent.
79630.
Supreme Court of Florida.
Nov 5, 1992.
607 So. 2d 1388
Per Curiam.
Cited by 41 opinions  |  Published

[*1389] Robert A. Butterworth, Atty. Gen. and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for petitioner.

James G. Kontos of Daniel S. Ciener, Merritt Island, for respondent.

PER CURIAM.

We have for review Von Deck v. State, 593 So.2d 1129 (Fla. 5th DCA 1992), based on express and direct conflict with Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

James Von Deck was charged by information with attempted premeditated murder of a law enforcement officer by shooting at him with a firearm. The information makes no direct reference to any act by Von Deck creating a well founded fear that violence would be imminently inflicted on the officer. At trial, Von Deck objected to the state's requested instruction on the permissive lesser included offense of aggravated assault, arguing that all the elements of this offense were not contained in the information. Florida law specifies that an essential element of any assault, including aggravated assault on a law enforcement officer, is an act creating a well founded fear in the victim that violence is imminent. Compare § 784.011, Fla. Stat. (1989) with § 784.07(2), Fla. Stat. (1989) and § 784.021, Fla. Stat. (1989). The objection was overruled.

Von Deck then was found guilty of aggravated assault. On appeal, the Fifth District reversed on grounds that the information did not sufficiently allege the crime. Von Deck.

The state now argues that the element of "putting in fear" can be established by inference, because a shooting is likely to create such fear. One district court case supports this position. Kimbrough. While this may be true in some cases, it will not be true in all. It is possible to commit an attempted murder without also committing aggravated assault, such as where the victim remains unaware of the attempted murder until some time has elapsed after the commission. Florida law is well settled that the elements of an offense cannot be established by mere inference. State v. Dye, 346 So.2d 538, 541 (Fla. 1977). Moreover, we expressly have said that an instruction cannot be given on a permissive lesser included offense unless both the accusatory pleading and the evidence support the commission of that offense. Brown v. State, 206 So.2d 377, 383 (Fla. 1968).

In light of this earlier case law, we find that the State is obligated to allege a "putting in fear" whenever it seeks an instruction on the permissive lesser included offense of aggravated assault. This did[*1390] not occur here, and the opinion below is approved on that basis. The opinion in Kimbrough is disapproved to the extent it is inconsistent with our views above.

It is so ordered.

BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.