Read the following excerpt from a US court opinion:
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to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. 2 . The State did not request, and the trial court did not give, an instruction stating that the defendant could be found guilty of aggravated battery by reason of using the tile or concrete floor as a deadly weapon. Id..; see § 784.045(l)(a)2., Fla. Stat. 3 . No argument has been made that it was impermissible to instruct on aggravated battery as a lesser included offense of manslaughter. “Lesser included offenses are determined on the elements of the offenses, not on the penalties attached.” Carle v. State, 983 So.2d 693, 695 (Fla. 1st DCA 2008) (citing Sanders v. State, 944 So.2d 203 (Fla.2006)); see also Michaels v. Swanson, 403 So.2d 1023 (Fla. 2d DCA 1981)
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What is the most suitable continuation to the opinion? Your options are:
A. holding that due process does not require a lesser included offense instruction of manslaughter where not requested
B. holding that aggravated battery is a lesser included offense of manslaughter
C. holding that where evidence was sufficient for attempted murder it was necessarily sufficient for aggravated assault which is a lesser included offense
D. holding that the defendant who was charged with felony murder was not entitled to a lesser included instruction on manslaughter because manslaughter is neither a lesser included offense nor an inferior degree crime with respect to felony murder
E. holding that battery is an inherently included offense of aggravated battery
Reply with [A, B, C, D, E] only.