Crapps v. State (566 So. 2d 62, 1990)

HARRIS, Judge.

Dwayne Crapps appeals his conviction of two counts of battery on a law enforcement officer. He contends the court erred in denying his request to give the simple battery instruction as a lesser included offense. We agree and reverse.

Although not listed as a lesser included offense to the offense of battery on a law enforcement officer in the Standard Jury Instructions, nonetheless, case law makes it clear that simple battery is a lesser included offense to such a charge. Jelks v. State, 509 So.2d 404 (Fla. 5th DCA 1987); Crumley v. State, 489 So.2d 112 (Fla. 1st DCA 1986), approved, 512 So.2d 183 (Fla.1987). A trial judge has no discretion on whether to instruct on a necessary lesser included offense. State v. Wimberly, 498 So.2d 929 (Fla.1986). Such error is not harmless. Hayes v. State, 564 So.2d 161 (Fla. 2d DCA 1990).

REVERSED for a new trial.

PETERSON and GRIFFIN, JJ., concur.