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719 So. 2d 1015

Martin v. State

District Court of Appeal of Florida

Decided November 4, 1998

District Court of Appeal of Florida · decided 1998-11-04

Relies on 705 So. 2d 923 - Abbott v. State

Decided 1998-11-04

PER CURIAM.

¶1A jury trial found appellant guilty of aggravated battery evidencing prejudice. With regard to the prejudice necessary to convict, the trial court charged the jury with a jury instruction similar to the one we disapproved in Abbott v. State, 705 So.2d 923, 924-25 (Fla. 4th DCA 1997). Based on Abbott, we reverse. However, this insufficiency does not require our granting a new trial to appellant who was properly convicted of aggravated battery. As in Abbott, we reverse for resen-tencing only to remove the enhancement under section 775.085, Florida Statutes (1995). See id. at 925.

¶2We affirm the remaining issues raised.

WARNER and KLEIN, JJ., and OWEN, WILLIAM C., Jr., Senior Judge, concur.
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