R. C. O., A Child v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D18-4515 _____________________________

R.C.O., a child,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Suzanne Bass, Judge.

July 23, 2019

PER CURIAM.

On appeal, R.C.O. raises two issues. First, R.C.O. argues that the trial court erred in finding him guilty of the lesser-included offense of improper exhibition of a dangerous weapon because the petition for delinquency did not contain the necessary elements for that lesser-included offense. Because we find the first issue dispositive, we decline to address R.C.O.’s second issue.

The petition for delinquency alleged that R.C.O. committed an aggravated battery upon his mother by intentionally touching or striking her against her will and while doing so, used a deadly weapon. After the parties presented all of the evidence, the trial court found R.C.O. guilty of the category two lesser-included offense of improper exhibition of a dangerous weapon. One of the

necessary elements of improper exhibition of a dangerous weapon is exhibiting the weapon in a “rude, careless, angry, or threatening manner.” § 790.10, Fla. Stat. (2018); Fla. Std. Jury Instr. (Crim) 10.5. Because the petition for delinquency did not include this element, we are compelled to reverse. See K.D. v. State, 69 So. 3d 1020, 1021 (Fla. 3d DCA 2011) (vacating adjudication for trespass in a conveyance because the petition for delinquency failed to include a necessary element of the permissive lesser-included offense).

REVERSED.

LEWIS and ROBERTS, JJ., concur; B.L. THOMAS, J., dissents without opinion.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Andy Thomas, Public Defender, and Kasey Helms Lacey, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Sharon Traxler, Assistant Attorney General, Tallahassee, for Appellee.