JACKSON v. STATE, 336 So.2d 390 (Fla.App. 3 Dist. 1976)

JAMES C. JACKSON, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE.

No. 75-1683.District Court of Appeal of Florida, Third District.
July 27, 1976. Rehearing Denied September 3, 1976.

Appeal from the Circuit Court, Dade County, Ira L. Dubitsky, J.

Page 391

Pollack, Tunkey, Robbins Leen, Miami, for appellant.

Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.

Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

Appellant was charged with involuntary sexual battery by use of a deadly weapon in violation of Section 794.011(3) F.S.A. He was found guilty by a jury of involuntary sexual battery by threat of violence.

The sole point on appeal is whether the trial court erred in failing to charge the jury as to the offenses of aggravated assault, assault and battery, and bare assault.

We have carefully considered the point on appeal in the light of the record, briefs and arguments of counsel and have concluded that reversible error has not been shown. See Gilford v. State,
Fla. 1975, 313 So.2d 729; Mitchell v. State, Fla.App. 1975, 321 So.2d 108 Hanna v. State, Fla.App. 1975, 319 So.2d 586 Mizell v. State, Fla.App. 1975, 310 So.2d 747.

Therefore the judgment and sentence are affirmed.

Affirmed.

PEARSON, Judge (dissenting).

I am convinced that a careful reading of Brown v. State, Fla. 1968, 206 So.2d 377; State v. Anderson, Fla. 1972, 270 So.2d 353; and Gilford v. State, Fla. 1975, 313 So.2d 729, requires reversal of this cause for a new trial. The jury manifested a desire to find the defendant guilty of a lesser included offense by not finding the defendant guilty as charged. The offense of aggravated assault was, in my view of the evidence, both a necessarily included offense and one supported by the evidence.