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TOLBERT v. STATE

No. 84-1137.

474 So.2d 5 (1985)

Theodis TOLBERT, Appellant, v. The STATE of Florida, Appellee.

District Court of Appeal of Florida, Third District.

July 30, 1985.

Attorney(s) appearing for the Case

Bennett H. Brummer, Public Defender and Henry H. Harnage, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.

PER CURIAM.

We reverse the defendant's conviction for aggravated battery upon a holding that where, as here, the defendant was charged with sexual battery, the not-necessarily-included offense of aggravated battery is a lesser offense of sexual battery only if the elements of Section 784.045, Florida Statutes (1983), are alleged in the charging document.1 Cf. Bragg v. State, 433 So.2d 1375 (Fla...

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