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464 So. 2d 1227

464 So.2d 1227

10 Fla.L.Weekly 237

Carter v. State

District Court of Appeal of Florida

Decided January 23, 1985

District Court of Appeal of Florida · decided 1985-01-23

Relies on Grant v. State · 429 So. 2d 307 - State v. Bruns · 356 So. 2d 1294 - Kimbrough v. State

Decided 1985-01-23

PER CURIAM.

¶1Alford Lester Carter was charged and convicted of attempted first degree murder. He appeals. We reverse and remand for a new trial.

¶2Reversible error was committed when the trial court refused to grant Carter’s repeated requests for a jury instruction on the necessarily lesser included offense of aggravated battery. The information and evidence supports the offense of aggravated battery. The problem was not cured by the giving of a charge on attempted second degree murder inasmuch as the ingredients of the two lesser charges are materially different.

¶3We reverse upon authority of State v. Bruns, 429 So.2d 307 (Fla.1983), State v. Abreau, 363 So.2d 1063 (Fla.1978), and Kimbrough v. State, 356 So.2d 1294 (Fla. 4th DCA 1978).

¶4Reversed and remanded for a new trial.

HERSEY and WALDEN, JJ., and FLEET, J. LEONARD, Associate Judge, concur.
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