JAMES THOMAS HOBBS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot be convicted of both a greater offense and its lesser included offense.
[1] A defendant cannot be convicted of both a greater offense and its lesser included offense.
[2] A defendant's failure to object to an erroneous conviction for both a greater and lesser included offense does not cure the error.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with two offenses but convicted of four by the jury, including lesser included offenses. The trial court accepted the jury's ver…
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ERVIN, Judge.
Appellant, charged with two offenses, following trial was convicted of four. He appeals. We reverse in part.
Appellant was charged in one count with the lewd, lascivious assault upon a child under the age of 14, contrary to Section 800.04, Florida Statutes (1977), and in count two with the same act on another child. The jury, at the conclusion of the court’s instructions, was given two verdict forms. Both reflected that the jury could find the defendant guilty as charged, or for the lesser included offenses of attempted battery. The jury apparently misunderstood the court’s instructions and not only found appellant guilty as charged, but also of the lesser offenses. The court then polled the jurors and after each responded that the verdicts were as intended, the court adjudged appellant guilty on all offenses returned. Later a single sentence of four years imprisonment was imposed as to both the offense charged in count one and the lesser offense of attempted battery. A concurrent sentence of 60 days in the county jail was imposed as to the offense stated in the second count.
It is fundamental that a defendant cannot be convicted both for the offense charged as well as its lesser offense. The fact that defense counsel timely failed to object does not cure such error. This does not mean, however, that all the verdicts and judgments entered must be vacated. It is abundantly clear that the jury intended to find defendant guilty of all offenses returned. The verdicts returned for the greater offenses comported with the jury’s intent, cf. Hambrick v. State, 80 Fla. 672, 86 So. 623 (Fla.1920), and they are sustained. The verdicts and judgments entered as to the lesser offenses are vacated and the cause is remanded to the trial court for sentencing proceedings consistent with this opinion.
The remaining points urged by appellant as requiring reversal have been considered and rejected. AFFIRMED in part and REVERSED in part.
ROBERT P. SMITH, Jr., Acting C. J., and LARRY G. SMITH, J., concur.
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Citator
Cited By
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Muszynski v. State, 392 So. 2d 63 (Fla. 5th DCA 1981)…, not having found “premeditation.” There was sufficient evidence to sustain both convictions. [*65] We therefore uphold the conviction for the more serious crime,3 first degree murder, and vacate the second degree murder conviction. Hobbs v. State, 371 So. 2d 722 (Fla. 1st DCA 1979). Similarly, the aggravated battery count was a lesser included offense of the murder.4 Appellant should not have been convicted of aggravated battery when he was found guilty of the murder. Accordingly, we must vacate that convi…
Authorities Cited
- Hambrick v. State, 80 Fla. 672 (Fla. 1920)