<p>Manslaughter falls under category 1:
That is clearly specified in the schedule of lesser included offense.</p>
<p>Even as to category 2, the lesser offense does not have to be specified in the information – " may or may not be included in the offense charged, depending on the accusatory pleading and the evidence," means that if the EVIDENCE AT TRIAL makes out the elements of a lesser included offense, then the instruction is warranted, no matter what the accusatory pleading says. Sometimes the facts which support a lesser offense only become apparent at trial during the defense case – the defendant might present testimony or a defense which, if believed, would reduce the level of culpability or make out a lesser offense. </p>
<p>You didn’t answer my question about whether you have a legal background, but I’m guessing that the answer is no, as you don’t seem to understand what “depending on the evidence” means. There is no requirement that lesser included offenses be specifically pleaded or set out in the accusatory pleading – but a prosecutor would not be able to introduce irrelevant evidence at trial, so the information essentially sets forth limits that would not allow a prosecutor with a weak case to try to make out a new offense and call it a “lesser”. </p>
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<p>That’s not true. The Schedule of Lesser Included Offenses specifies:</p>
<p>SECTION<br>
782.04(2) </p>
<p>CHARGED OFFENSES<br>
Second degree (depraved mind) murder </p>
<p>CATEGORY 1
Manslaughter 782.07 </p>
<p>CATEGORY 2
Third degree (felony) murder 782.04(4)
Vehicular homicide 782.071
(Nonhomicide lessers)
Attempt
Culpable negligence 784.05(2)
Aggravated battery 784.045
Aggravated assault 784.021
Battery 784.03
Assault 784.011 </p>
<p>I already pointed that out in my post #1390, citing to the specific statutes. </p>
<p>If there is something that you don’t understand, then please point to it and ask whatever question you have – but I hope you will refrain from wasting everyone’s time by posting falsehoods. I am quite puzzled by your absolute statement that there is no category 1 offense listed for 2nd degree murder when manslaughter is clearly listed on the chart.</p>