Levesque v. State

The appellant, Giles Levesque, was charged with second degree murder. After a jury trial, he was found guilty of aggravated battery. He challenges his conviction, arguing that the trial court erred in instructing the jury that aggravated battery is a lesser included offense of second degree murder. Because the information did not sufficiently allege commission of aggravated battery by causing great bodily harm, the trial court erred in instructing the jury on this theory. Accordingly, we reverse the conviction for aggravated battery. The information charged Levesque with second degree murder by striking or kicking the victim in the head. 1 Second degree murder is a general intent crime while aggravated battery is a specific intent crime. See Howard v. State, 732 So. 2d 489, 490 (Fla. 4th DCA 1999). ""A person commits aggravated battery who, in committing battery: 1. intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement . . . ."" § 784.045(1)(a), Fla. Stat. (1995). Aggravated battery is not a necessary lesser included offense of second degree murder, but it may be a permissive lesser offense depending upon the allegations in the information. 2 See Busby v. State, 766 So. 2d 259, 263 (Fla. 4th DCA), decision quashed on other grounds by, 765 So. 2d 49 (Fla. 2000).