Opinion
No. 78-498.
November 14, 1978. Rehearing Denied December 18, 1978.
Appeal from the Circuit Court, Dade County, Ellen Morphonios Gable, J.
Paul E. Gifford, Coral Gables, for appellant.
Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
The appellant, Alfredo Hidalgo, was found guilty of aggravated battery by a jury. On this appeal, reversal is urged upon two grounds: (1) that the court erred in refusing to instruct upon a claimed lesser-included offense of culpable negligence and (2) that the court's charge upon the defense of self-defense was improper.
Our review of the record, including the accusatory pleading and the evidence before the trial court, establishes that the misdemeanor of culpable negligence was not, as contended by the appellant, a category four, lesser-included offense under the rule set forth in Brown v. State, 206 So.2d 377 (Fla. 1968). Therefore, it was not error for the court to fail to charge on the misdemeanor. Further, the record demonstrates that there was no error in the charge to the jury on the burden of proof on the defense of self-defense. See the rule of law in Mathews v. State, 221 So.2d 431, 432 (Fla.2d DCA 1969).
Affirmed.