          Supreme Court of Florida
                                     ____________

                                    No. SC18-1059
                                    ____________

                              TIMOTHY ANDERSON,
                                   Petitioner,

                                           vs.

                               STATE OF FLORIDA,
                                   Respondent.

                                     March 5, 2020

LAWSON, J.

      This case is before the Court for review of the First District Court of

Appeal’s decision in Anderson v. State, 247 So. 3d 680 (Fla. 1st DCA 2018),

which affirmed Timothy Anderson’s felony conviction for aggravated assault with

a deadly weapon, an automobile, and rejected Anderson’s argument that his jury

should have been instructed on reckless driving as a lesser-included offense. The

First District certified that its decision directly conflicts with Piggott v. State, 140

So. 3d 666 (Fla. 4th DCA 2014), in which the Fourth District held on similar facts 1


      1. The Fourth District’s decision in Piggott references the defendant’s
charge as aggravated assault with a deadly weapon within its harmless error
analysis but as aggravated battery with a deadly weapon in the remainder of its
that a defendant is entitled to have his jury instructed on reckless driving as a lesser

offense. Anderson, 247 So. 3d at 684. We have jurisdiction. See art. V, § 3(b)(4),

Fla. Const. For the reasons explained below, we approve the First District’s

decision in Anderson and disapprove the Fourth District’s decision in Piggott.

                                  BACKGROUND

      Timothy Anderson was charged with and convicted of aggravated assault

with a deadly weapon after he drove his truck erratically and struck his girlfriend’s

car. Anderson, 247 So. 3d at 681. The criminal information alleged that Anderson

“did unlawfully and intentionally make an assault upon [Anderson’s girlfriend]

with a motor vehicle, a deadly weapon[,] without intent to kill, contrary to

[s]ection 784.021(1)(a), Florida Statutes [(2014)2].” Id. at 682. At trial, Anderson

requested a jury instruction on the offense of reckless driving as a permissive

lesser-included offense. Id. at 681. The trial court denied his request. Id. On

appeal, Anderson argued entitlement to a new trial at which the judge instructs the



opinion. See Piggott, 140 So. 3d at 670. But see id. at 668-71 (referencing the
defendant’s charge and conviction as “aggravated battery with a deadly weapon”).
Although aggravated assault with a deadly weapon and aggravated battery with a
deadly weapon are different levels of offenses under chapter 784, Florida Statutes
(2014), it is the nature of the deadly weapon, an automobile, and not whether the
offense is an assault or battery, that is relevant to the conflict issue.

       2. Although Anderson was charged under the 2014 version of this statute,
there is no substantive difference between the 2014 version and the current version
of section 784.021(1)(a).


                                         -2-
jury on reckless driving as a lesser-included offense of aggravated assault with a

deadly weapon. Id.

      The First District affirmed Anderson’s conviction and sentence, reasoning

that reckless driving is not a permissive lesser-included offense of aggravated

assault with a deadly weapon, an automobile, unless the charging instrument

alleges that the defendant was driving at the time of the offense—which the First

District found not to have been alleged. Id. at 683-84. The First District also

certified conflict with the Fourth District’s decision in Piggott, which came to the

opposite conclusion, namely that reckless driving is a permissive lesser-included

offense of aggravated battery with a deadly weapon so long as the weapon alleged

is a motor vehicle and it is undisputed at trial that the defendant was driving. Id. at

684; Piggott, 140 So. 3d at 669, 671 n.1.

                                     ANALYSIS

      Anderson argues that because (1) the information alleged use of an

automobile to commit the offense and (2) it was undisputed that he was driving at

the time of the offense, he was entitled to a jury instruction on the charge of

reckless driving as a permissive lesser-included offense. We review this legal

issue de novo. See Khianthalat v. State, 974 So. 2d 359, 360 (Fla. 2008). We

reject this argument and will (1) explain the relevant law regarding permissive

lesser-included offenses, (2) explain why reckless driving is not an applicable


                                         -3-
lesser-included offense of the aggravated assault charge in this case, and (3)

address Anderson’s specific arguments, which are based upon the analysis in

Piggott and the dissent in Anderson.

   A. Permissive Lesser-Included Offenses.

      In In re Standard Jury Instructions in Criminal Cases, 431 So. 2d 594 (Fla.

1981), we recognized two categories of lesser-included offenses: those

“necessarily included in the offense charged,” id. at 596, which are not at issue

here, and those “which may or may not be included in the offense charged,

depending on the accusatory pleading and the evidence.” Id. This latter category

is often referenced as “permissive” lesser-included offenses. Stevens v. State, 226

So. 3d 787, 790 (Fla. 2017). “A permissive lesser included offense exists when

‘the two offenses appear to be separate [on the face of the statutes], but the facts

alleged in the accusatory pleadings are such that the lesser [included] offense

cannot help but be perpetrated once the greater offense has been.’ ” Sanders v.

State, 944 So. 2d 203, 206 (Fla. 2006) (alterations in original) (quoting State v.

Weller, 590 So. 2d 923, 925 n.2 (Fla. 1991)).

      This Court in Brown v. State, 206 So. 2d 377, 383 (Fla. 1968), overruled in

part on other grounds by Standard Jury Instructions in Criminal Cases, 431 So. 2d

at 597, described the process by which trial judges determine whether a permissive

lesser-included offense is included in the offense charged, stating that “the trial


                                         -4-
judge must examine the information to determine whether it alleges all of the

elements of a lesser offense . . . [and] [i]f the accusation is present, then the judge

must determine from the evidence whether it supports the allegation of the lesser

included offense.” A jury instruction on a permissive lesser-included offense “is

appropriate only if the allegations of the greater offense contain all the elements of

the lesser offense and the evidence at trial would support a verdict on the lesser

offense.” Williams v. State, 957 So. 2d 595, 599 (Fla. 2007). A trial judge is

therefore required to give a jury instruction on a permissive lesser-included offense

(upon request) “if the following two conditions are met: ‘(1) the indictment or

information must allege all the statutory elements of the permissive lesser included

offense; and (2) there must be some evidence adduced at trial establishing all of

these elements.’ ” Khianthalat, 974 So. 2d at 361 (quoting Jones v. State, 666 So.

2d 960, 964 (Fla. 3d DCA 1996)). With respect to the first condition, “Florida law

is well settled that the elements of an offense cannot be established by mere

inference.” State v. Von Deck, 607 So. 2d 1388, 1389 (Fla. 1992) (citing State v.

Dye, 346 So. 2d 538, 541 (Fla. 1977)).

      Von Deck is instructive. In that case, we accepted review to settle a conflict

of decisions over whether a jury could be instructed on the charge of aggravated

assault as a permissive lesser-included offense of the charge of attempted murder

by shooting. Id. at 1389. We explained that aggravated assault includes an


                                          -5-
element of “putting [the victim] in fear,” which is not an element of attempted

murder and was not alleged in the information. Id. We expressly rejected the

argument “that the element of ‘putting in fear’ can be established by inference,

because a shooting is likely to create such fear,” id., explaining that while it would

be true in some cases that being shot at will put the victim in fear, “it will not be

true in all [cases because] . . . . [i]t is possible to commit an attempted murder

without also committing aggravated assault, such as where the victim remains

unaware of the attempted murder until some time has elapsed after the

commission.” Id. We reiterated the well-settled rules “that the elements of an

offense cannot be established by mere inference,” and that “an instruction cannot

be given on a permissive lesser included offense unless both the accusatory

pleading and the evidence support the commission of that offense.” Id. (citing

Brown, 206 So. 2d at 383).

      The requirement that an offense not be submitted to the jury as a permissive

lesser-included offense unless all elements are alleged in the charging document

for the greater offense is an application of the more general principle that juries are

not to be instructed on uncharged crimes. See generally, 15A Fla. Jur. 2d Criminal

Law—Procedure § 2040 (2019). We view this rule as justified on two bases. The

most obvious, and most often cited, is that the due process clause requires that a

defendant be put on clear notice of all crimes for which he or she is in jeopardy of


                                          -6-
being convicted and punished. U.S. Const. amend. XIV, § 1; art. I, § 9, Fla.

Const.; art. I, § 16(a), Fla. Const.; Weatherspoon v. State, 214 So. 3d 578, 583-84

(Fla. 2017) (quoting Price v. State, 995 So. 2d 401, 404 (Fla. 2008)). The second

justification is found in Florida’s constitutional directive for separation of powers,

art. II, § 3, Fla. Const., and the executive branch’s exclusive discretion under

Florida law to prosecute or not prosecute an individual for crimes committed. See

ch. 27, Fla. Stat. (2019); see also Ayala v. Scott, 224 So. 3d 755, 759 n.2 (Fla.

2017) (“[T]he power to prosecute . . . is a purely executive function . . . .”); State v.

Bloom, 497 So. 2d 2, 3 (Fla. 1986) (“Under Florida’s constitution, the decision to

charge and prosecute is an executive responsibility, and the state attorney has

complete discretion in deciding whether and how to prosecute.”); Fulk v. State, 417

So. 2d 1121, 1126 (Fla. 5th DCA 1982) (Cowart, J., concurring specially)

(“Although state attorneys, like all attorneys, are officers of the court, the

execution of criminal statutes by enforcement, including prosecution, is an

executive function of government. The state attorney, when acting as a

prosecuting officer under article V, section 17, of the Florida Constitution and

under chapter 27 of the Florida Statutes, is performing an executive function and

not a judicial function.” (footnote omitted)). Any judicial rule authorizing a

defendant to present an uncharged offense for a jury’s consideration, over the

objection of the prosecution, would interfere with the executive branch’s exclusive


                                          -7-
authority to prosecute cases and would constitute a substantive change in Florida

law.

   B. Application in This Case.

       We now turn to whether the information charging Anderson with aggravated

assault with a deadly weapon alleged all statutory elements of reckless driving.

“Reckless driving” is defined in section 316.192(1)(a), Florida Statutes (2014),

which states that “[a]ny person who drives any vehicle in willful or wanton

disregard for the safety of persons or property is guilty of reckless driving.”

Florida’s standard jury instructions provide the following instruction for a violation

of section 316.192(1)(a):

              To prove the crime of Reckless Driving, the State must prove
       the following beyond a reasonable doubt:

       (Defendant) drove a vehicle in Florida with a willful or wanton
       disregard for the safety of persons or property.

See Fla. Std. Jury Instr. (Crim.) 28.5. Obviously, driving is an essential element of

the crime of reckless driving.

       The information in this case alleged that Anderson “did unlawfully and

intentionally make an assault upon [Anderson’s girlfriend] with a motor vehicle, a

deadly weapon[,] without intent to kill, contrary to [s]ection 784.021(1)(a), Florida

Statutes.” Anderson, 247 So. 3d at 682. Although a reader might infer from this

language that Anderson was driving the vehicle, the information does not actually


                                         -8-
make that allegation. Instead, consistent with the elements of the aggravated

assault charge,3 the information simply alleges that Anderson made “an assault

upon” the victim “with a motor vehicle.” Id. Because the information charging

aggravated assault did not allege driving, an essential element of reckless driving,

we readily conclude that the trial court correctly denied Anderson’s request for an

instruction on reckless driving as a permissive lesser-included offense, and that the

First District correctly affirmed as to this issue.

   C. Anderson’s Contrary Arguments.

      First, Anderson argues that Piggott contains a correct analysis and

application of the first condition that must be met before a separate offense

qualifies as a permissive lesser-included offense: that “the indictment or

information must allege all the statutory elements of the permissive lesser included

offense.” Piggott, 140 So. 3d at 669 (quoting Khianthalat, 974 So. 2d at 361).

However, instead of analyzing the language of the charging instrument in Piggott’s

case, the Fourth District seems to have concluded that alleging an automobile as a

deadly weapon constitutes an allegation of driving as a matter of law. See id.



       3. “Aggravated assault” is an “assault . . . [w]ith a deadly weapon without
intent to kill.” § 784.021(1)(a). “Assault” is defined in section 784.011(1), Florida
Statutes (2014), as “an intentional, unlawful threat by word or act to do violence to
the person of another, coupled with an apparent ability to do so, and doing some
act which creates a well-founded fear in such other person that such violence is
imminent.”


                                          -9-
(“conclud[ing] that reckless driving is a permissive lesser included offense of

aggravated battery with a deadly weapon when the alleged deadly weapon is an

automobile” and reiterating that “the charge of aggravated battery with a deadly

weapon alleges all of the statutory elements of reckless driving when the alleged

deadly weapon is an automobile”).4 Although Piggott cites two cases in support of

its conclusion, see id. (citing Wallace v. State, 688 So. 2d 429, 429-30 (Fla. 3d

DCA 1997), and LaValley v. State, 633 So. 2d 1126, 1127 (Fla. 5th DCA 1994)),

both of the cited opinions state that the information at issue in those cases alleged

driving. Wallace, 688 So. 2d at 430 (“The allegation within the information that

Wallace intentionally drove his car in such a way as to threaten the officers was

‘sufficient to include the willful and wanton disregard for the safety of others’




       4. In fairness to the Fourth District, we find it appropriate to point out that
the briefing before that court did not illuminate a clear path to the correct legal
analysis. In its answer brief, for example, the State seemed to accept that alleging
use of an automobile constituted an allegation of driving, and focused instead on
the intent elements associated with each crime and on whether any error in refusing
to give the instruction constituted harmless error. Answer Brief of Appellee at 4-7,
Piggott v. State, 140 So. 3d 666 (Fla. 4th DCA 2014) (No. 4D12-2704). Even on
rehearing, when the State first argued that “in order to be entitled to an instruction
on the crime of reckless driving, there needed to be an allegation in the charging
document that the defendant committed the battery by driving the automobile,” the
State neither expounded on its argument nor cited Von Deck, 607 So. 2d 1388, or
any other case setting forth the well-settled law that an element cannot be inferred
in this context. Appellee’s Motion for Rehearing and/or Motion for Rehearing En
Banc and Motion for Certified Question of Great Public Importance at 1-5, Piggott
v. State, 140 So. 3d 666 (Fla. 4th DCA 2014) (No. 4D12-2704).


                                        - 10 -
necessary to establish reckless driving.” (quoting LaValley, 663 So. 2d at 1127))

(emphasis added); LaValley, 633 So. 2d at 1127 (“We believe that a charge that

one committed an aggravated assault by intentionally driving her vehicle in a

threatening manner subsumes the elements of reckless driving.”) (emphasis

added). 5

      By contrast, according to the Fourth District’s opinion, the State merely

alleged that Piggott “did unlawfully and intentionally touch or strike [the victim]

against his will with a deadly weapon, to wit: a Kia Sephia four-door automobile,”

Piggott, 140 So. 3d at 669 (alteration in original), which only implies driving and

does not allege driving. Accepting Anderson’s argument on this issue would

require that we ignore or recede from Florida’s “well[-]settled [law] that the

elements of an offense cannot be established by mere inference,” Von Deck, 607

So. 2d at 1389, which we are unwilling to do.

      As a factual matter, alleging use of an automobile in this context is not the

same as alleging driving because an automobile could be used to commit the

greater offense without driving, as the State pointed out to the Fourth District on

rehearing, see Piggott, 140 So. 3d at 671 n.1 (“According to the state, ‘one can



       5. However, it is unclear how the Fifth District reached the conclusion that
the charging document alleged that the defendant drove the vehicle when such was
not included in its earlier recitation of the charging document’s language. See
LaValley, 633 So. 2d at 1127.


                                        - 11 -
batter another person with an automobile with[out] the act of driving the

automobile (e.g., by slamming the hood or door of a car on the head of a victim of

dropping a car from a crane onto a victim).’ ”), and as the State argues here. With

respect to the aggravated assault charge in this case, and analogous to the analysis

in Von Deck, one could commit aggravated assault with a motor vehicle without

driving it, by, for example, pushing an unmanned vehicle down a hill toward the

victim, threatening to crush part of the victim’s body with a vehicle door or trunk

lid, or threatening to lock the victim in a trunk and roll the vehicle into a body of

water. Cf. Von Deck, 607 So. 2d at 1389 (explaining that, as a factual matter, “[i]t

is possible to commit an attempted murder without also committing aggravated

assault, such as where the victim remains unaware of the attempted murder until

some time has elapsed after the commission”).

      Anderson attempts to bolster his reliance on Piggott by pointing out the far

greater likelihood that a person committing an aggravated assault using an

automobile would do so by driving than by any other method. This argument

misses the point. The existence of a foreseeable way that an automobile could be

used to commit an aggravated assault or battery without driving, irrespective of the

probable frequency of occurrence, means that alleging use of a vehicle as a deadly

weapon cannot be treated, factually, as an allegation of driving.




                                         - 12 -
        Finally, Anderson relies heavily on the dissent in Anderson, which posits

that:

               Limiting review solely to the information as originally
        drafted—and forcing trial judges to ignore subsequent indisputable
        factual developments—is a recipe for gamesmanship when defendants
        request instructions on lesser-included offenses. Because an
        information’s content is exclusively controlled by the State, a game of
        “heads I win, tails you lose” can result if a Spartan information is
        drafted, alleging aggravated assault but leaving out whether the car
        was driven, thereby precluding a defendant from claiming a legitimate
        lesser-included offense based on the facts developed prior to trial; no
        suggestion is made that was the intent here, but that is the result. Had
        the State alleged in its information against Anderson that the assault
        upon the victim was by “driving with a motor vehicle,” it could not
        now argue that the lesser-included offense of reckless driving was
        precluded. What an odd result: Anderson loses his right to the lesser-
        included offense instruction of reckless driving simply because the
        original information left out the word “driving”—even though
        everyone knew pre-trial that was the means of assault.

Anderson, 247 So. 3d at 685 (Makar, J., concurring in part and dissenting in part). 6

        These points do not give us pause. First, the law is clear that the facts as

they are known to the State at the time of charging, or “subsequent[ly] . . .

develop[ed],” id., including at trial, are legally irrelevant to a trial court’s

determination of whether “the allegations of the greater offense contain all the




      6. Judge Makar concurred only in the decision to certify conflict with
Piggott, which he viewed as “set[ting] forth the better approach in deciding
whether a jury instruction on a lesser-included offense requested by a defendant
should be given.” Anderson, 247 So. 3d at 684 (Makar, J., concurring in part and
dissenting in part).


                                          - 13 -
elements of the lesser offense,” Williams, 957 So. 2d at 599, which is what this

Court’s precedent clearly requires a trial judge to first examine when determining

whether a separate offense constitutes a permissible lesser-included offense. See

Khianthalat, 974 So. 2d at 361 (explaining that for a separate charge to constitute a

permissive lesser-included offense “the indictment or information must allege all

the statutory elements of the permissive lesser included offense” (quoting Jones,

666 So. 2d at 964)). The charging document does not change based upon

“subsequent indisputable factual developments,” Anderson, 247 So. 3d at 685

(Makar, J., concurring in part and dissenting in part), unless the State chooses to

amend the information and is permitted to do so. Here, the information was never

amended.

      Second, the notion that the charging information should be viewed in light of

the evidence presented at trial inappropriately conflates the two independent

considerations set forth by this Court for decades as the test for determining what

constitutes a permissive lesser-included offense, see, e.g., Brown, 206 So. 2d at

383, essentially eliminating the first requirement that all elements of a lesser

offense “must” be factually alleged in the charging document in order for the

offense to qualify as a permissive lesser-included offense. Khianthalat, 974 So. 2d

at 361.




                                        - 14 -
      Third, this result would implicate separation of powers concerns by

interfering with the charging discretion granted to the executive by substantive

law. See art. V, § 17, Fla. Const.; ch. 27, Fla. Stat. (2019); Bloom, 497 So. 2d at 3.

There is nothing sinister about a prosecuting authority exercising its charging

discretion strategically in this context. Had the State elected to charge reckless

driving, it invariably would have done so in a second count. Reckless driving

would have then been presented to the jury as an additional charge—not as a lesser

alternative to the aggravated battery charge, as the defendant would have preferred.

      Fourth, the purpose of a charging instrument is to put the defendant on

notice, Miller v. State, 42 So. 3d 204, 215 (Fla. 2010) (citing art. I, § 16, Fla.

Const.), not to allege all of the facts that will ultimately support the essential

elements of the charge. Indeed, the state attorney is directed by Florida Rule of

Criminal Procedure 3.140(b) to draft an information that is “a plain, concise, and

definite written statement of the essential facts constituting the offense charged.”

Requiring the State to allege “driving” in this case would be contrary to the

direction of our rules and go beyond putting the defendant on notice of the nature

and cause of the charged offense. Moreover, the responsibility for detail and

particularity in the charging document rests on the defendant and not the State. See

Fla. R. Crim. P. 3.140(n) (“The court, on motion, shall order the prosecuting

attorney to furnish a statement of particulars when the indictment or information


                                         - 15 -
on which the defendant is to be tried fails to inform the defendant of the particulars

of the offense sufficiently to enable the defendant to prepare a defense.”).

      Finally, neither Anderson nor Judge Makar’s dissent cites any authority

supporting the assertion made by both that Anderson had a “right” to have his jury

consider a separate crime as a lesser alternative to the crime charged when the

lesser, separate offense does not qualify as a permissive lesser-included offense

under well-settled Florida law.

                                  CONCLUSION

      Because an element of an offense cannot be established in a charging

document by inference, we hold that a defendant is not entitled to a defendant-

requested jury instruction on the permissive lesser-included offense of reckless

driving where the charging instrument fails to expressly allege the element of

driving. Accordingly, we approve the First District’s decision in Anderson and

disapprove the Fourth District’s decision in Piggott.

      It is so ordered.

CANADY, C.J., and POLSTON and MUÑIZ, JJ., concur.
LABARGA, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.




                                        - 16 -
LABARGA, J., dissenting.

      I dissent from the majority’s conclusion that because the information did not

expressly allege that Anderson was driving at the time of the offense, he was not

entitled to an instruction on the permissive lesser included offense of reckless

driving. In doing so, I agree with the well-reasoned concurring in part and

dissenting in part opinion written by Judge Makar in the decision below, and the

majority opinion in the certified conflict case, Piggott v. State, 140 So. 3d 666 (Fla.

4th DCA 2016) (holding that “reckless driving is a permissive lesser included

offense of aggravated battery with a deadly weapon when the alleged deadly

weapon is an automobile”).

      Under rule 3.510(b), Florida Rules of Criminal Procedure, a jury may

convict a defendant of: “any offense that as a matter of law is a necessarily

included offense or a lesser included offense of the offense charged in the

indictment or information and is supported by the evidence.” (Emphasis added.)

As noted by Judge Makar, “[a]lthough a charging document is very important in

providing notice of the charge alleged, as the Sixth Amendment requires, Piggott

persuasively points out that what is even more important from the defense’s

perspective is the actual basis of a charge at the time of the charge conference,

when predicate facts are conclusively framed and jury instructions approved. At

that point, a lesser-included offense may have become obvious that was not at the


                                        - 17 -
outset.” Anderson v. State, 247 So. 3d 680, 684 (Fla. 1st DCA 2018) (Makar, J.,

concurring in part and dissenting in part).

      In this case, in the sole count of the information, the State charged that

Anderson “did unlawfully and intentionally make an assault upon [the victim] with

a motor vehicle, a deadly weapon without intent to kill.” The evidence in this case

establishes an indisputable conclusion that Anderson was driving that vehicle at the

time of the offense. In fact, not only does the State not dispute that Anderson was

driving, it repeatedly relies on this point. During opening statements, the

prosecutor summarized the State’s version of the underlying events as follows:

             Earlier that night, [Anderson’s] girlfriend . . . went out with
      friends to a club. The defendant shows up. He sees her talking to a
      guy in the parking lot. Presumably, he gets angry.
             When she and her friends get in the car to leave . . . the
      defendant gets in his car to follow her. He begins to try and block her
      into the parking lot at first to keep her from leaving. They’re both
      driving. She is able to get out of the parking lot, but when she does,
      the defendant follows her down the road and begins to get into a chase
      with her.
             She’s going to testify that they’re going high speeds. She’s
      having to run red lights, that he rammed his car into the back of her
      car—his truck into the back of her truck. That he does this multiple
      times.

(Emphasis added.) During its case in chief, the State called two witnesses,

including the victim, who provided eyewitness testimony that Anderson was

driving a vehicle and chasing them. The State also called an officer who testified




                                        - 18 -
that the victim identified Anderson as the person who chased her vehicle and

caused her to have an accident.

      Moreover, during its cross-examination of Anderson, the State emphasized

that Anderson was driving (and recklessly so):

      Prosecutor: So you were driving to follow her is what you were
      doing that night? You thought she was driving, and you were trying
      to follow her, right?

      Anderson: Yes, ma’am.

      Prosecutor: So you all start speeding. She starts speeding. You start
      following her speeding?

      Anderson: Yes, ma’am.

      Prosecutor: Okay. You said you get about, I think your testimony
      was a car length away from her car?

      Anderson: Yes, ma’am.

      Prosecutor: Okay. But somehow you run into it?

      Anderson: Yes, ma’am.

      Prosecutor: And you’re saying it’s an accident?

      Anderson: Yes, ma’am.

      Prosecutor: You’re chasing her at high speeds?

      Anderson: Yes, ma’am.

      Prosecutor: And you hit her by accident?

      Anderson: Yes, ma’am.



                                      - 19 -
Prosecutor: And you heard everybody here testify today that you hit
her car more than once, right?

Anderson: Yes, ma’am.

Prosecutor: And are you trying to say you only hit her one time?

Anderson: Yes, ma’am.

Prosecutor: And all that screaming from that 911 call came from one
accidental hit of her car?

Anderson: Yes, ma’am.

Prosecutor: Okay. You know she crashed her car that night?

Anderson: Yeah, after the fact.

Prosecutor: Right. Was that after the first time you hit her?

Anderson: I only hit her once.

Prosecutor: And you heard the officer here today testify that he saw
you . . . moving along the road, running red lights, running stop signs?

Anderson: Yes, ma’am.

Prosecutor: Do you remember running multiple red lights?

Anderson: Yes, ma’am.

Prosecutor: And your testimony is that you did not think this would
scare anyone? Following somebody, making them run through red
lights?

Anderson: No, ma’am.

Prosecutor: You weren’t trying to scare her?

Anderson: No, ma’am.

                                  - 20 -
      Prosecutor: You weren’t mad at her; that’s what you want this jury to
      believe?

      Anderson: Yes, ma’am.

      Considering this evidence, there is no question that Anderson was driving

the vehicle involved in the offense. The fact that Anderson was driving a vehicle

at the time of the offense was not established by “mere inference.” Majority op. at

6. There was direct evidence, in the form of eyewitness testimony, that Anderson

was driving. Indeed, Anderson himself admitted to driving.

      The State, having drafted the information charging Anderson with

aggravated assault with a deadly weapon (a motor vehicle), and having relied on

the fact that Anderson was driving the vehicle, benefitted from drafting the

information in a way that limited Anderson’s ability to have the jury instructed on

a permissible lesser included offense supported by the evidence. As Judge Makar

pointed out, there is no indication that the State intentionally drafted the

information in the manner that it did, but the result nonetheless is that Anderson

was deprived of the reckless driving permissible lesser included offense even

though there was never a dispute that Anderson was driving. “Simply put, trial

judges should not be told to put on blinders at a charge conference, looking only at

an information filed months or years earlier, when it has become obvious that a

lesser-included instruction requested by the defendant is appropriate in light of a

fact not then in dispute (here, that the car was driven, not dropped from the sky,

                                         - 21 -
used as a bludgeon, and so on).” Anderson, 247 So. 3d at 685 (Makar, J.,

concurring in part and dissenting in part).

      While there is also no question that the evidence supported the charge of

aggravated assault with a deadly weapon, the point is that the evidence proved that

Anderson was driving a vehicle, and the evidence supported an instruction on the

permissible lesser included offense of reckless driving. The jury was entitled to

receive that instruction and to then be entrusted to, upon determining that the State

met its burden, convict the defendant for the highest offense proven.

      For these reasons, I dissent.

Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions

      First District - Case No. 1D15-5433

      (Leon County)

Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,

      for Petitioner

Ashley Moody, Attorney General, Trisha M. Pate, Bureau Chief, and Amanda
Stokes, Assistant Attorney General, Tallahassee, Florida,

      for Respondent




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