          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D15-5433
                  _____________________________

TIMOTHY ANDERSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                   ___________________________

On appeal from the Circuit Court for Leon County.
James O. Shelfer, Judge.

                           May 25, 2018


PER CURIAM.

      After a night out at a local club, Timothy Anderson’s girlfriend
left in her car with some friends. Anderson took off after them in
his truck, driving erratically at times and eventually hitting his
girlfriend’s car. Anderson was convicted of aggravated assault with
a deadly weapon. His sole argument on appeal is that the jury
should have been instructed on the lesser-included offense of
reckless driving. Because the trial court did not err by declining to
give the requested instruction, we affirm.

     Anderson’s defense at trial was that while he was admittedly
driving recklessly, he did not intentionally hit his girlfriend’s car.
He argues that he was entitled to a jury instruction on reckless
driving as a lesser-included offense because he did not possess the
intent necessary to be convicted of aggravated assault or simple
assault, on which the jury was instructed. Since this issue involves
a question of law based upon undisputed facts, our standard of
review is de novo. Khianthalat v. State, 974 So. 2d 359, 360-61 (Fla.
2008).

     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 omitted) (quoting State v. Weller, 590 So. 2d 923, 925
n.2 (Fla. 1991)). Upon request, a trial judge is required to instruct
the jury on a permissive lesser-included offense if two conditions
are met: (1) the charging document alleges all the statutory
elements of the lesser offense, and (2) there is some evidence
presented at trial establishing each element of the requested
lesser-included offense. State v. Knighton, 235 So. 3d 312, 315 (Fla.
2018) (quoting Khianthalat, 974 So. 2d at 361).

     The offense of reckless driving involves driving a vehicle “in
willful or wanton disregard for the safety of persons or property.”
§ 316.192(1)(a), Fla. Stat. In this case, the information charging
Anderson with aggravated assault with a deadly weapon alleged
that he “did unlawfully and intentionally make an assault upon
[his girlfriend] with a motor vehicle, a deadly weapon without
intent to kill, contrary to Section 784.021(1)(a), Florida Statutes.”

     Noticeably absent from the information is an allegation that
Anderson was driving the vehicle, an essential element of reckless
driving. See State v. Lappin, 471 So. 2d 182, 183 n.1 (Fla. 3d DCA
1985) (noting that first element of reckless driving is “1. driving a
vehicle”). Anderson nevertheless contends that all the statutory
elements of reckless driving are subsumed in the aggravated
assault charge because it is not possible to commit aggravated
assault with a motor vehicle without driving the vehicle. For
support, he relies primarily on Piggott v. State, 140 So. 3d 666, 669
(Fla. 4th DCA 2014), which held that reckless driving is a
permissive lesser-included offense of aggravated battery with a
deadly weapon when the weapon is a motor vehicle.

     The information in Piggott charged the defendant with
striking the victim “with a deadly weapon, to wit: a Kia Sephia
four-door automobile.” Id. The court concluded that the first
                                 2
condition of the test for a permissive lesser-included offense was
met because the charging document alleged “all the statutory
elements of reckless driving.” 1 On rehearing, and in response to
the State’s post-opinion argument that the information failed to
include the element of driving, the court reasoned that “our
interpretation of the information, when viewed at the time of the
charge conference, cannot ignore the undisputed evidence that the
defendant was driving the automobile which is alleged to have
been the instrument of the alleged aggravated battery with a
deadly weapon upon the victim.” Id. at 671 n.1.

     We disagree with the analysis of Piggott and conclude that the
first condition of the test for a permissive lesser-included offense
is not met in this case as the facts alleged in the information are
not “such that the lesser included offense cannot help but be
perpetrated once the greater offense has been.” Anderson v. State,
70 So. 3d 611, 613 (Fla. 1st DCA 2011) (alteration omitted)
(quoting Williams v. State, 957 So. 2d 595, 598 (Fla. 2007)).

      It is not enough that there was undisputed evidence at trial
that Anderson was driving his truck at the time of the assault. The
first step in the analysis asks only whether the charging document
alleges all the statutory elements of the lesser offense, without
consideration of the evidence presented at trial. See Wright v.
State, 983 So. 2d 6, 9 (Fla. 1st DCA 2007). Therefore, in Wright, we
held that a defendant convicted of grand theft auto was not


    1  The court relied on two cases for support: Wallace v. State,
688 So. 2d 429, 430 (Fla. 3d DCA 1997) (“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’ necessary to establish
reckless driving.”), and LaValley v. State, 633 So. 2d 1126, 1127
(Fla. 5th DCA 1994) (“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.”).
Both opinions contain language suggesting that the charging
document in each of the cases alleged the element of driving.
However, the opinion in LaValley also contains the wording of the
charging document, which does not include that specific allegation.

                                  3
entitled to an instruction on the lesser charge of trespass in a
conveyance. Id. The evidence showed the defendant committed the
grand theft by driving off in a BMW, but the information did not
specifically allege the defendant entered the vehicle, an essential
element of trespass. Id. It did not matter that the State had proven
entry; the information controlled. Id.

     Our decision in Wright was no outlier. In Phillips v. State, 874
So. 2d 705, 706 (Fla. 1st DCA 2004), the defendant was convicted
of aggravated battery with a deadly weapon, after the evidence
established that he stabbed two men with a knife. On appeal, the
defendant insisted the trial court should have instructed the jury
on the lesser offense of improper exhibition of a deadly weapon. Id.
at 707. We rejected that contention, precisely because an element
of the latter offense—that the defendant “exhibited his knife ‘in a
rude, careless, angry or threatening manner’”—was not charged in
the information. Id. (quoting statute). Similarly, in Stewart v.
State, 790 So. 2d 440, 440 (Fla. 1st DCA 2000), a defendant
convicted of armed robbery argued he was entitled to an
instruction on resisting a merchant. Id. We rejected that argument
because, again, “[t]he elements of such offense were not specifically
alleged in the information.” Id.

    The requirement that the elements of the lesser offense be
“specifically alleged in the information” means it is not enough
that the element of driving could be inferred from Anderson’s
charging document because driving might be the most common
manner in which an assault with a motor vehicle occurs. 2 In State


    2  We reject Anderson’s argument that it is not possible to
commit aggravated assault with a motor vehicle without driving
the vehicle. In an analogous case, Texas’ highest court for criminal
cases identified several other ways in which aggravated assault
with a deadly weapon by use of a motor vehicle could occur, such
as by “locking the victim in a hot car, slamming the victim’s head
against the car frame, rigging the car’s gas tank to explode, placing
the car in neutral and allowing it to run into the victim or a
building, suffocating the victim in the trunk, or running the car in
an enclosed area to cause carbon monoxide poisoning.” Rice v.
State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). In that case,
the court held that reckless driving was not a lesser-included
                                 4
v. Von Deck, the Florida Supreme Court made clear that “Florida
law is well settled that the elements of an offense cannot be
established by mere inference.” 607 So. 2d 1388, 1389 (Fla. 1992).
In Von Deck, the defendant was charged with attempted
premeditated murder by shooting at the victim with a firearm. 607
So. 2d at 1389. The issue was whether the State was entitled to a
jury instruction on the lesser-included offense of aggravated
assault where the information did not allege an essential element
of the lesser offense, namely that the defendant’s actions caused a
well-founded fear in the victim that violence was imminent. Id.
The State argued the missing element of “well-founded fear” could
be inferred from the charging document because a shooting is
likely to create such a fear. Id. Unpersuaded, the court explained,
“While this may be true in some cases, it will not be true in all. It
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. The court concluded that aggravated
assault was not a lesser-included offense of attempted murder as
charged. Id. at 1389-90; see also Farley v. State, 740 So. 2d 5, 7
(Fla. 1st DCA 1999) (“The State’s argument that ‘[u]sing a knife to
inflict bodily harm on someone is at the very least exhibiting the
weapon in a rude, careless, angry or threatening manner’ is an
attempt to allege the required elements by inference. This is
impermissible . . . .”); Andrews v. State, 679 So. 2d 859, 859-60
(Fla. 1st DCA 1996).

     Binding precedent therefore compels us to reject the
argument that the trial court should have given the reckless
driving instruction. And because we find no error, we need not
address the separate issue of whether the jury’s decision to convict
on the greater offense would render harmless any error in denying
a lesser-included instruction.




offense of aggravated assault with a deadly weapon, i.e., a motor
vehicle, where the information failed to allege that the defendant
was driving. Id. at 147.

                                 5
     We affirm the judgment below and certify conflict with Piggott
v. State, 140 So. 3d 666 (Fla. 4th DCA 2014).

     AFFIRMED; CONFLICT CERTIFIED.

RAY and WINSOR, JJ., concur; MAKAR. J., concurring in part and
dissenting in part.
                 _____________________________

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

MAKAR, J., concurring in part and dissenting in part.

     I concur in certifying conflict with Piggott v. State, 140 So. 3d
666, 669 (Fla. 4th DCA 2014), which holds that “reckless driving is
a permissive lesser included offense of aggravated battery with a
deadly weapon when the alleged deadly weapon is an automobile.”
Piggott sets forth the better approach in deciding whether a jury
instruction on a lesser-included offense requested by a defendant
should be given. Although 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 outset.

      This case provides a good example. Although the information
charging Anderson with aggravated assault with a deadly weapon,
i.e., his car, it did not explicitly say that he “drove” the car, leaving
open other possibilities (such as locking the victim in the trunk and
pushing the car into a lake); it became incontestable at the charge
conference (and probably much sooner) that driving the car into
the victim’s vehicle was the charged conduct, thereby making
reckless driving an obvious lesser-included offense for which a jury
instruction was appropriate.


                                   6
    As Judge Gerber said in Piggott, the charged conduct must be
considered in light of the “undisputed evidence” at the time of the
charge conference:

    While we recognize the possibility of a defendant being
    charged with battery for “slamming the hood or door of a
    car on the head of a victim” or the more remote possibility
    of “dropping a car from a crane onto a victim,” our
    interpretation of the information, when viewed at the
    time of the charge conference, cannot ignore the
    undisputed evidence that the defendant was driving the
    automobile which is alleged to have been the instrument
    of the alleged aggravated battery with a deadly weapon
    upon the victim.

Piggott, 140 So. 3d at 671 n.1. 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, used as a
bludgeon, and so on). Unlike when the prosecution seeks to inject
a new charge at trial as a lesser-included offense, which implicates
notice and due process concerns, a defendant requesting a lesser-
included offense instruction at trial acquiesces to the instruction
and thereby obviates constitutional concerns to a great extent.

     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

                                  7
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. Even odder is that
in LaValley v. State, 633 So. 2d 1126, 1127 (Fla. 5th DCA 1994),
the State successfully sought the same instruction over the
defendant’s objection, the defendant was found guilty of the
reckless driving charge, and the appellate court affirmed, saying
“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.” These
disparate results in the caselaw support the conflict certified.

     Under the approach in Piggott and LaValley, anomalous
situations are avoided; defendants cannot be disadvantaged via
artful or inartful drafting of the information. It’s hard to conclude
what the majority rule is nationwide, see Russell G. Donaldson,
Annotation, Lesser-related state offense instructions: modern
status, 50 A.L.R.4th 1081 (1986), but the better view takes account
of factual realities when defendants seek lesser-included jury
instructions at the time jury instructions are approved. For this
reason, Piggott and similar cases make more sense.

                  _____________________________

Andy Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and David Llanes and
Amanda Stokes, Assistant Attorneys General, Tallahassee, for
Appellee.




                                 8
