Piggott v. State
140 So. 3d 666
| Fla. Dist. Ct. App. | 2014Background
- Defendant was charged with aggravated battery with a deadly weapon after allegedly striking the victim with a Kia Sephia automobile.
- Victim testified defendant swerved the car, struck his hip, knocked him down, then fled and nearly hit a van.
- At charge conference defense requested a jury instruction on reckless driving as a permissive lesser included offense; court denied request and instructed only on aggravated battery with a deadly weapon and simple battery.
- Jury convicted defendant of aggravated battery with a deadly weapon; defendant appealed the denial of the reckless driving instruction.
- The appellate court reviewed the legal question de novo because the facts were undisputed and addressed whether reckless driving is a permissive lesser included offense when the alleged deadly weapon is a car.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reckless driving is a permissive lesser included offense of aggravated battery with a deadly weapon when the alleged weapon is a vehicle | State: instruction improper because aggravated battery requires intent while reckless driving requires only willful/wanton disregard | Defense: reckless driving is a permissive lesser included offense because the information and evidence allege conduct that necessarily includes reckless driving when the weapon is a car | Yes. Reckless driving is a permissive lesser included offense under these circumstances and the trial court erred by refusing the instruction |
| Whether failure to instruct on reckless driving was harmless error | State: error harmless because jury convicted of aggravated battery and acquitted of simple battery (one degree removed) | Defense: error could have affected the verdict because reckless driving requires no intent and jury might have convicted only of reckless driving | Not harmless. Court cannot say beyond a reasonable doubt the omission did not affect the verdict; reversal required |
Key Cases Cited
- State v. Espinosa, 686 So.2d 1345 (Fla. 1996) (trial judge has discretion to give lesser offense instructions based on charging document and evidence)
- Khianthalat v. State, 974 So.2d 359 (Fla. 2008) (entitlement to permissive lesser instruction is a legal question reviewed de novo when facts are undisputed)
- Sanders v. State, 944 So.2d 203 (Fla. 2006) (defines permissive lesser included offense: statutory elements vs. facts alleged)
- Wallace v. State, 688 So.2d 429 (Fla. 3d DCA 1997) (aggravated assault allegation based on driving can subsume reckless driving elements)
- LaValley v. State, 633 So.2d 1126 (Fla. 5th DCA 1994) (driving in a threatening manner as aggravated assault can include reckless driving)
- State v. DiGuilio, 491 So.2d 1129 (Fla. 1986) (harmless error standard: reversal required unless appellate court can say beyond a reasonable doubt the error did not affect the verdict)
- Pena v. State, 901 So.2d 781 (Fla. 2005) (errors in omitting instructions for crimes two or more degrees removed are subject to harmless-error review)
- McKiver v. State, 55 So.3d 646 (Fla. 1st DCA 2011) (appellate court could not say beyond a reasonable doubt omission of permissive lesser instruction did not affect verdict)