appeal from the Circuit Court for Leon County. James O.
Thomas, Public Defender, and Kathleen Stover, Assistant
Public Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General, and David Llanes and Amanda
Stokes, Assistant Attorneys General, Tallahassee, for
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.
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.
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).
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),
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.
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 condition of the test for a
permissive lesser-included offense was met because the
charging document alleged "all the statutory elements of
reckless driving." 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.
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.
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 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.
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.
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. In Statev. 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,