          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                           No. 1D18-4515
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R.C.O., a child,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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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.

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




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