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607 So. 2d 1388

Docket No. 79630.

State v. Von Deck

STATE of Florida, Petitioner, v. James VON DECK, Respondent.

Supreme Court of Florida

Decided November 5, 1992.

Supreme Court of Florida · decided 1992-11-05

Key passage — most relied on by later courts

“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.”

quoted by 3 later decisions, including 874 So. 2d 705 - Phillips v. State, 699 So. 2d 822 - Viveros v. State

“Florida law is well settled that the elements of an offense cannot be established by mere inference.”

quoted by 3 later decisions, including 874 So. 2d 705 - Phillips v. State, 699 So. 2d 822 - Viveros v. State

Relies on Brown v. State · 346 So. 2d 538 - State v. Dye · 356 So. 2d 1294 - Kimbrough v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1992-11-05

How this case has been cited

Cited by 37 later decisions — most recently May 2018 · most notably 699 So. 2d 822 - Viveros v. State (1997), 829 So. 2d 289 - Pena v. State (2002)

37 state decisions

180199220002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1*1389 Robert A. Butterworth, Atty. Gen. and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for petitioner.

¶2James G. Kontos of Daniel S. Ciener, Merritt Island, for respondent.

¶3PER CURIAM.

¶4We 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.

¶5James 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.

¶6Von 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.

¶7The 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).

¶8In 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.

¶9It is so ordered.

¶10BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.

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