-Summary by Jacob Salit
The Supreme Court of Florida reviewed whether a jury should be instructed on reckless
driving as a lesser-included offense when the felony conviction is for aggravated assault with a
deadly weapon, being an automobile. Specifically, the First District Court of Appeal’s decision
directly conflicts with the Fourth District’s previous ruling in Piggott v. State, which held that a
defendant is entitled to have his jury instructed on reckless driving as a lesser offense. Piggott v.
State, 140 So. 3d 666 (Fla. 4th DCA 2014). In its holding, the Court disapproved of the Fourth
District’s ruling decision in Piggott and approved the First District’s decision in Anderson,
finding that where the charging instrument fails to expressly allege the element of driving, a
defendant is not entitled to jury instruction on the less-included offense of reckless driving.
After driving chaotically into his girlfriend’s car, Timothy Anderson was charged and
convicted of aggravated assault with a deadly weapon. While in trial, Anderson requested
that the jury be instructed on the offense of reckless driving as a permissive lesser-included
offense. The trial court refused this request which led to Anderson’s appeal where he argued for
a new trial where the jury is instructed on reckless driving as a lesser-included offense. The First
District affirmed the conviction, reasoning that unless the charging instrument alleges that the
defendant was driving during the offense, reckless driving is not a proper permissive lesser-
included offense.
The Supreme Court found that two conditions must be met before a jury instruction on a
permissive-lesser offense is given. The indictment or information should include all of the
statutory elements of the lesser offense and there must be evidence at trial that establishes these
statutory elements. Khianthalat, 974 So. 2d at 361 (Fla. 3d DCA 1996). The information at trial
simply alleged that Anderson assaulted the victim with a motor vehicle and did not establish or
make evidence of Anderson’s driving during the offense. Additionally, the Fourth District’s
decision in Piggott incorrectly concluded that alleging an automobile as a deadly weapon
constitutes an allegation of driving as a matter of law. Reasoning that these offenses cannot be
made by mere inference, the First District correctly affirmed the trial court’s decision.
