MACRI v. STATE (1997)

District Court of Appeal of Florida,Fifth District.

Julia MACRI, Appellant, v. STATE of Florida, Appellee.

Case No. 96-945.

Decided: March 21, 1997

James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

Convicted of the offense of battery on a law enforcement officer, the appellant Julia Macri complains that the trial court failed to instruct the jury on the necessarily lesser included offense of simple battery as requested by defense counsel. The appellant correctly argues that the trial court had no alternative but to give the instruction and the state, in effect, concedes that it was a per se reversible error. State v. Wimberly, 498 So.2d 929 (Fla.1986); Nelson v. State, 665 So.2d 382 (Fla. 4th DCA 1996); Crapps v. State, 566 So.2d 62 (Fla. 5th DCA 1990).

Accordingly, we vacate the judgement of conviction and remand for a new trial on the charge of battery on a law enforcement officer.

JUDGMENT VACATED; REMANDED.

PER CURIAM.

PETERSON, C.J., and W. SHARP and GOSHORN, JJ., concur.

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