R.C.O., a child, Appellant, v. STATE (2019)

On appeal, R.C.O. raises two issues. First, R.C.O. argues that the trial court erred in finding him guilty of the lesser-included offense of improper exhibition of a dangerous weapon because the petition for delinquency did not contain the necessary elements for that lesser-included offense. Because we find the first issue dispositive, we decline to address R.C.O.'s second issue.

The petition for delinquency alleged that R.C.O. committed an aggravated battery upon his mother by intentionally touching or striking her against her will and while doing so, used a deadly weapon. After the parties presented all of the evidence, the trial court found R.C.O. guilty of the category two lesser-included offense of improper exhibition of a dangerous weapon. One of the necessary elements of improper exhibition of a dangerous weapon is exhibiting the weapon in a “rude, careless, angry, or threatening manner.” § 790.10, Fla. Stat. (2018); Fla. Std. Jury Instr. (Crim) 10.5. Because the petition for delinquency did not include this element, we are compelled to reverse. See K.D. v. State, 69 So. 3d 1020, 1021 (Fla. 3d DCA 2011) (vacating adjudication for trespass in a conveyance because the petition for delinquency failed to include a necessary element of the permissive lesser-included offense).

Reversed.

Per Curiam.

Lewis and Roberts, JJ., concur; B.L. Thomas, J., dissents without opinion.