Stork v. State

475 So. 2d 622 (1984)

Francis Louise STORK v. STATE of Alabama.

1 Div. 807.

Court of Criminal Appeals of Alabama.

October 9, 1984.

Rehearing Denied November 13, 1984.

Edwin L. Yates, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Phillip Luke Hughes, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Francis Louise Stork was indicted for assault in the first degree in violation of § 13A-6-20, Code of Alabama 1975. The jury found the appellant "guilty of assault in the second degree" and the trial judge sentenced her to three years' imprisonment in the penitentiary.

The facts of this case will be stated briefly. On the night of October 1, 1981, a fight ensued outside the Fisherman's Paradise Club in Bayou La Batre. The fight involved Darlene Barber and her husband, Louis, and this appellant and several of her friends. At some point during the fight, Darlene Barber was stabbed with a tire tool. Both Darlene Barber and her husband testified the appellant was the person who stabbed Darlene Barber. The appellant denied stabbing Darlene Barber. Another defense witness testified that the appellant was not involved in the fight.

The appellant claims she was entitled to a charge on the lesser included offense of assault in the third degree. This court has held that assault in the third degree is a lesser included offense of assault in the second degree. Wyatt v. State, 419 So. 2d 277 (Ala.Crim.App.), cert. denied, 419 So. 2d 277 (Ala.1982).

However, an accused is not entitled to a charge on a lesser included offense when he or she denies committing the offense as did the appellant in this case. Wesley v. State, 424 So. 2d 648 (Ala. Crim.App.1982), cert. denied, 424 So. 2d 648 (Ala.1983); Williams v. State, 377 So. 2d 634 (Ala.Crim.App.), cert. denied, 377 So. 2d 639 (Ala.1979). From the evidence in this cause, the trial court was not obliged to charge on the lesser included offense as requested.

*623 Therefore, the trial judge properly refused to charge the jury on the lesser included offense of assault in the third degree in this case.

The appellant claims the trial judge improperly ordered restitution without holding a hearing as is provided by § 15-18-67, Code of Alabama 1975. The trial judge ordered restitution by the appellant at the end of the sentencing hearing where the appellant and her counsel were present. Defense counsel failed to object to this action by the trial court. Therefore, this issue is not preserved for our review.

For the reasons stated above, this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.