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concluding the jury instructions were “fundamentally erroneous because they improperly ‘permitted the jury to convict [the defendant] of aggravated assault if one alleged victim was threatened while the other [alleged victim] had a well-founded fear of violence’ ”
Summary of this case from Fussell v. StateOpinion
No. 2D05-5660.
December 8, 2006.
Appeal from the Circuit Court for Lee County; James R. Thompson, Judge.
James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
Thomas Edward Fuller appeals his judgment and sentence for aggravated assault with a deadly weapon. We affirm the denial of Fuller's motion for judgment of acquittal without comment. We conclude, however, that the jury instructions were — as the State concedes — fundamentally erroneous because they improperly "permitted the jury to convict [the defendant] of aggravated assault[, see § 784.021, Fla. Stat. (2004),] if one alleged victim was threatened while the other [alleged victim] had a well-founded fear of violence." Millet v. State, 918 So.2d 415, 416-17 (Fla. 2d DCA 2006); see also Tindle v. State, 832 So.2d 966, 967 (Fla. 5th DCA 2002); James v. State, 706 So.2d 64, 65 (Fla. 5th DCA 1998). We therefore reverse and remand for a new trial.
Reversed and remanded.
FULMER, C.J., and WHATLEY, J., Concur.