348 So. 2d 636 | Fla. Dist. Ct. App. | 1977
Appellant was charged with sexual battery committed by threat of force or vio
Appellant made a timely request for an instruction on the offenses of assault
The failure to instruct on a necessarily lesser included offense when requested by the defendant cannot be harmless error. Lomax v. State, 345 So.2d 719 (Fla.1977); State v. Terry, 336 So.2d 65 (Fla.1976). Since appellant was convicted of the least serious offense upon which the jury was charged, the “two steps removed” rationale of DeLaine v. State, supra, is inapplicable.
The judgment and sentence must be reversed, and the case remanded for a new trial.
. § 794.01 l(4)(b), Fla.Stat. (1973).
. § 794.011(5), Fla.Stat. (1975).
. § 784.011, Fla.Stat. (1975).
. § 784.03, Fla.Stat. (1975).