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350 So. 2d 518

Cruce v. State

District Court of Appeal of Florida

Decided October 4, 1977

District Court of Appeal of Florida · decided 1977-10-04

Relies on Clark v. State · First Funding Corp. v. Shattuck, Roether, Frailey & Wilson, Inc.

Decided 1977-10-04

PER CURIAM.

¶1To sustain a charge of aggravated assault there must be proof that the victim was in fear of imminent bodily injury. Lopez v. State, 345 So.2d 757 (Fla. 4th DCA 1977). There was no proof of this necessary element offered at the trial of this case. Accordingly, the judgment and sentence are reversed. Since the evidence at trial established that appellant was guilty of battery, a lesser offense necessarily included in the charge upon which the appellant went to trial, we remand this cause to the trial court with directions to enter a judgment and sentence for battery, a first degree misdemeanor. See Clark v. State, 337 So.2d 798 (Fla.1976).

¶2REVERSED AND REMANDED, with directions.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.
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