132 So. 3d 891
Fla. Dist. Ct. App.2014Background
- On June 6, 2012, appellant approached a woman at a convenience store parking lot, poked her chest with what she testified was a gun, shoveled her to the ground, and she called police.
- Appellant was charged and convicted of aggravated assault (under Fla. Stat. § 784.021) and battery; jury returned guilty on aggravated assault but answered an interrogatory finding appellant did not actually possess a firearm during the assault.
- Jury was instructed only on aggravated assault with a deadly weapon (and the special finding as to actual possession of a firearm), and the parties agreed to omit the lesser-included offense of simple assault from the verdict form.
- Appellant moved for new trial or, alternatively, for reduction of aggravated assault to simple assault, arguing the jury’s firearm finding negated an essential element of aggravated assault.
- Trial court denied relief relying on Carswell; the district court reviewed the inconsistent-verdict question de novo and found the verdict truly inconsistent because the only evidence of a deadly weapon was the firearm.
- Court affirmed battery conviction but reversed as to aggravated assault, remanding to reduce that conviction to simple assault and for resentencing.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the jury’s specific finding that appellant did not possess a firearm is truly inconsistent with a guilty verdict for aggravated assault (by deadly weapon) | The firearm finding negates the only element that elevates assault to aggravated assault, so conviction must be reduced or new trial granted | The jury permissibly exercised lenity/pardon (as in Carswell); inconsistent verdicts are allowed and do not require relief | True inconsistency exists here; reduce aggravated assault to simple assault and remand for resentencing |
Key Cases Cited
- Brown v. State, 959 So.2d 218 (Fla. 2007) (describes general rule allowing inconsistent verdicts and the “true inconsistent verdict” exception)
- State v. Carswell, 914 So.2d 9 (Fla. 4th DCA 2005) (jury lenity upheld where aggravated battery could be sustained without firearm finding)
- Waits v. State, 795 So.2d 237 (Fla. 5th DCA 2001) (reduced aggravated battery to simple battery when jury found no deadly weapon)
- Redondo v. State, 403 So.2d 954 (Fla. 1981) (reversed guilty firearm finding that was inconsistent with acquittal/lesser verdict on underlying offense)
- Naumowicz v. State, 562 So.2d 710 (Fla. 1st DCA 1990) (discusses jury pardon/lenity but factually distinguishable)