Fuller v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT THOMAS EDWARD FULLER, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ________________________________ ) Case No. 2D05-5660 Opinion filed December 8, 2006. Appeal from the Circuit Court for Lee County; James R. Thompson, Judge. James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee. CANADY, Judge. Thomas Edward Fuller appeals his judgment and sentence for aggravated assault with a deadly weapon. We affirm the denial of Fuller s motion for judgment of acquittal without comment. We conclude, however, that the jury instructions were as the State concedes fundamentally erroneous because they improperly permitted the jury to convict [the defendant] of aggravated assault[, see § 784.021, Fla. Stat. (2004),] if one alleged victim was threatened while the other [alleged victim] had a well-founded fear of violence. Miller v. State, 918 So. 2d 415, 416-17 (Fla. 2d DCA 2006); see also Tindle v. State, 832 So. 2d 966, 967 (Fla. 5th DCA 2002); James v. State, 706 So. 2d 64, 65 (Fla. 5th DCA 1998). We therefore reverse and remand for a new trial. Reversed and remanded. FULMER, C.J., and WHATLEY, J., Concur. -2-

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