CLIFFORD EMANUEL JAMES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
James was convicted of assault, a lesser-included offense, after being charged with aggravated assault. He appealed, arguing the trial court erred by failing to instruct the jury on the minimum and maximum penalties for aggravated assault and lesser-included offenses. The court affirmed, holding that the failure to instruct on penalties for the charged offense is harmless error when the defendant is convicted of the lowest lesser-included offense.
The trial court was required under Florida Rule of Criminal Procedure 3.390(a) to instruct the jury on penalties for the offense charged (aggravated assault) upon request, but was not required to instruct on penalties for lesser-included offenses. The failure to instruct on penalties for the charged offense is harmless error where the defendant is convicted of the lowest lesser-included offense.
[1] A trial court must instruct the jury on the maximum and minimum sentences for the offense charged upon request of either party.
[2] A trial court is not required to instruct the jury on the penalties for lesser-included offenses, even if requested.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.”
Florida Rule of Criminal Procedure 3.390(a) mandating penalty instructions for the offense charged upon request
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJames was tried on an information charging aggravated assault. He requested jury instructions on the minimum and maximum penalties for the charged off…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Mandatory Jury Instructions cases and more on FLexlaw
DANIEL S. PEARSON, Judge.
James, tried on an information charging him with aggravated assault, was convicted of the lesser included offense of assault and sentenced to sixty days in jail. He contends that the trial court erred by failing to instruct the jury, as James requested, on the minimum and maximum penalties for the charged offense, as well as lesser-included offenses, here improper exhibition of a firearm and assault.
Florida Rule of Criminal Procedure 3.390(a) provides:
“(a) The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial.” (emphasis supplied).
Where a penalty instruction on the offense charged is requested, the rule makes such instruction mandatory. Tascano v. State, 393 So. 2d 540 (Fla.1980). However, neither the rule nor Tascano requires that a jury be instructed on the penalties for lesser-included offenses. Under pre-Tascano cases holding Rule 3.390(a) mandatory, the trial court was obliged to instruct only on penalties for the offense charged, not on the penalties for any lesser-included offenses. Mitchell v. State, 304 So. 2d 466 (Fla. 3d DCA 1974); Settle v. State, 288 So. 2d 511 (Fla. 2d DCA 1974).1 Thus, the defendant was not entitled to have the jury instructed on the penalties for improper exhibition of a firearm and assault.
The remaining issue before us is whether the trial court’s failure to instruct on the penalties for the offense charged, that is, aggravated assault, per se error under Tascano,
is harmless in light of the jury’s verdict on the lesser-included offense of assault. We conclude that the failure to instruct on the penalties for the offense charged is harmless where, as here, the defendant is convicted of the lowest lesser-included offense.3
Affirmed.
. However, if the trial court, in the exercise of its discretion, does instruct on penalties for lesser-included offenses, it is not error. Pinkney v. State, 241 So. 2d 380 (Fla.1970).
. The State contends that Tascano should not apply here since James was tried before Tasca-no was decided. Since, pre-Tascano, the law in this district was that the penalty instruction was mandatory, see, e. g., Mitchell v. State, supra, we need not address the retroactivity of Tascano. We note, however, that the decision in Tascano is expressly made retroactive to cases tried before Tascano in which the defendant preserved the point on appeal.
.James was convicted of the lowest possible offense, assault, a second-degree misdemeanor. § 784.011, Fla.Stat. (1979). Improper exhibition of a firearm is a misdemeanor of the first degree. § 790.10, Fla.Stat. (1979). We need not decide the harmlessness vel non of failing to instruct on the penalty for the crime charged where the defendant is convicted of the highest of the lesser-included offenses.
HUBBART, Chief Judge
(concurring).
I concur in the court’s affirmance herein but would not reach the merits of the penalty instruction point urged by the appellant because he failed, in my view, to preserve the point for appellate review, and, accordingly, I would affirm on that basis alone. Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980), as adopted and followed in Bailey v. State, 393 So. 2d 24 (Fla. 3d DCA 1980); Atkinson v. State, 378 So. 2d 324 (Fla. 3d DCA 1980); White v. State, 324 So. 2d 115 (Fla. 3d DCA), cert. dismissed, 339 So. 2d 1173 (Fla.1976); Fla.R.Crim.P. 3.390(d); see Tascano v. State, 393 So. 2d 540 (Fla.1980).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
-
Delap v. State, 440 So. 2d 1242 (Fla. 1983)…t the jury on the maximum and minimum sentences for lesser included offenses of first-degree murder. Tascano v. State, 393 So. 2d 540 (Fla.1980), does not require that a jury be instructed on the penalty for lesser included offenses. James v. State, 393 So. 2d 1138 (Fla. 3d DCA), review denied, 402 So. 2d 610 (Fla.1981). The instructions to the jury were in writing as required by Florida Rule of Criminal Procedure 3.390(b). Defendant requested that they be sent with the jury when the jury retired to deliberate…
-
Whitaker v. State, 433 So. 2d 1352 (Fla. 3d DCA 1983)…103 S.Ct. 72, 74 L.Ed.2d 71 (1982); Lewis v. State, 399 So. 2d 473 (Fla. 4th DCA 1981), aff’d on other grounds, 419 So. 2d 337 (Fla.1982); Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981), rev. denied, 412 So. 2d 471 (Fla.1982); James v. State, 393 So. 2d 1138 (Fla. 3d DCA), rev. denied, 402 So. 2d 610 (Fla.1981). See also Wright v. State, 428 So. 2d 746 (Fla. 1st DCA 1983), where the court held that it is not required to give an instruction informing the jury that under the habitual offender statute, the…
-
Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981)…Judges Association (1979) No. 10A. See also Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). .Anomalously, the jury need not be instructed on the penalty provisions of lesser-included of [*1003] fenses. James v. State, 393 So. 2d 1138 (Fla. 3d DCA 1981); Mitchell v. State, 304 So. 2d 466 (Fla. 3d DCA 1974); Settle v. State, 288 So. 2d 511 (Fla. 2d DCA 1974). . Where it is clear that the jury was given a full opportunity to exercise its inherent pardoning power and rejected pardo…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tascano v. State, 393 So. 2d 540 (Fla. 1980)
- Kelly v. State, 389 So. 2d 250 (Fla. 2d DCA 1980)
- White v. State, 324 So. 2d 115 (Fla. 3d DCA 1975)
- Settle v. State, 288 So. 2d 511 (Fla. 2d DCA 1974)
- Bailey v. State, 393 So. 2d 24 (Fla. 3d DCA 1981)
- Mitchell v. State, 304 So. 2d 466 (Fla. 3d DCA 1974)
- Darnel C. Atkinson v. State, 378 So. 2d 324 (Fla. 3d DCA 1980)
- Pinkney v. State, 241 So. 2d 380 (Fla. 1970)