Opinion
No. 76-852.
April 1, 1977.
Appeal from the Circuit Court, Broward County, Louis Weissing, J.
Howard M. Zeidwig, Fort Lauderdale, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
Our opinion filed March 11, 1977, is withdrawn and this opinion is filed in place thereof.
This is an appeal from a conviction of aggravated assault. The defendant, Jose S. Lopez, who was tried upon a charge of aggravated battery, claims that the evidence did not support the conviction of aggravated assault. We agree and reverse.
To sustain a charge of aggravated assault there must be proof that the victim was in fear of imminent bodily injury. State v. White, 324 So.2d 630 (Fla. 1975). There was no proof of this necessary element offered at the trial of this case. Accordingly, the judgment and sentence are reversed. Since the evidence at trial established that appellant was guilty of battery, a lesser offense necessarily included in the charge upon which the appellant went to trial, we remand this cause to the trial court with directions to enter a judgment and sentence for battery, a first degree misdemeanor. See Clark v. State, 337 So.2d 798 (Fla. 1976).
REVERSED AND REMANDED, with directions.
DOWNEY and ANSTEAD, JJ., and FOGLE, HARRY W., Associate Judge, concur.