WILLIE REDDICK, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reversed a Fifth District Court of Appeal decision that denied jury instructions on robbery with a weapon as a lesser-included offense of robbery with a firearm. The Court held that the trial court erred in refusing to instruct the jury on the next immediate lesser-included offense, which constitutes per se reversible error.
The trial court erred in failing to give the requested instruction on robbery with a weapon, which is a necessarily lesser-included offense of robbery with a firearm and is the next immediate lesser-included offense. Such failure constitutes per se reversible error.
[1] A trial court errs when it fails to instruct the jury on a necessarily lesser included offense.
[2] The failure to instruct on the next immediate lesser included offense is per se reversible error.
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Join FLexlaw to unlock all legal intelligence“Thus, if robbery with a weapon is a necessarily lesser included offense of robbery with a deadly weapon, as we believe it is, it follows that the trial court erred in failing to give appellant's requested instruction.”
Establishes the legal principle that failure to instruct on a necessarily lesser-included offense is error
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Join FLexlaw to unlock all legal intelligenceReddick was charged with robbery with a firearm and testified that the store manager identified a .32 caliber black revolver used in the robbery. The …
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McDONALD, Justice.
We review the opinion of the Fifth District Court of Appeal in Reddick v. State, 380 So. 2d 1330 (Fla. 5th DCA 1980), which expressly and directly conflicts with Growden v. State, 372 So. 2d 930 (Fla.1979), and Huff v. State, 350 So. 2d 123 (Fla.2d DCA 1977), on the same point of law. Art. V, § 3(b)(3), Fla.Const. Reddick was convicted of robbery with a firearm pursuant to section 812.13(2)(a), Florida Statutes (1975). The trial judge charged the jury on robbery with a firearm, attempted robbery with a firearm, robbery, and attempted robbery. He denied Red-dick’s requested charge on robbery with a weapon because “there is no evidence to support it, it was either a firearm or it wasn’t.”1
The Fifth District Court of Appeal distinguished Growden. Growden, however, approved Huff, in which Judge Board-man said: “Thus, if robbery with a weapon is a necessarily lesser included offense of robbery with a deadly weapon, as we believe it is, it follows that the trial court erred in failing to give appellant’s requested instruction.” 350 So. 2d at 124. The failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible. See State v. Abreau, 363 So. 2d 1063 (Fla.1978). The requested instruction comes within that degree.
To affirm this decision we would have to recede from Growden and Huff. We decline to do so and therefore quash the decision of the district court of appeal with instructions to remand the cause for a new trial.
It is so ordered.
ADKINS, Acting Chief Justice, BOYD and OVERTON, JJ., concur. ALDERMAN, J., dissents with an opinion.
. The store manager testified that the robber used a .32 caliber black revolver with a four-inch barrel.
ALDERMAN, Justice,
dissenting.
I do not believe that the opinion of the Fifth District in the present case expressly and directly conflicts with Growden and Huff on the same point of law. As pointed out by Judge Beranek in his opinion for the Fifth District, Growden is distinguishable because in that case the jury was precluded from considering robbery with a weapon, whereas here the instruction given adequately covered this lesser included offense. 380 So. 2d at 1332.
I, therefore, conclude that this Court is without jurisdiction and that Reddick’s petition for review should be denied. Art. V, § 3(bX3), Fla.Const. If we did have jurisdiction, I would approve the decision of the Fifth District.
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Cited By (31 total)
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Harris v. State, 438 So. 2d 787 (Fla. 1983)…s, that a refusal of such a request constitutes fundamental error when properly preserved for appeal by timely objection under Florida Rule of Criminal Procedure 3.390(d), and that the harmless error rule does not apply. See, e.g., Reddick v. State, 394 So. 2d 417 (Fla.1981); State v. Abreau, 363 So. 2d 1063 (Fla.1978); State v. Thomas, 362 So. 2d 1348 (Fla.1978); Lomax v. State, 345 So. 2d 719 (Fla.1977). In State v. Washington, the accused’s counsel objected to the trial judge giving the jury the instructi…
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Sanders v. State, 946 So. 2d 953 (Fla. 2006)…(Cowart, J., dissenting)). We have recognized the possibility of jury pardons in holding that “[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.” Reddick v. State, 394 So. 2d 417, 418 (Fla.1981); see also State v. Wimberly, 498 So. 2d 929, 932 (Fla.1986) (“The requirement that a trial judge must give a requested instruction on a necessarily lesser included offense is bottomed upon -a recognition of the jury’s right to exerci…
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Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)…Williams’ contention that, because of an ambiguity in the instructions to which he also did not object, he should have been convicted only of the lesser offense of robbery with a weapon, instead of robbery with a deadly weapon. See Reddick v. State, 394 So. 2d 417 (Fla.1981). It is clear, viewing the instructions and the verdict finding Williams guilty as charged in the information in the context of the issues presented by both sides below, that the judgment under review properly reflects the intent and findi…
Previewing 3 of 31 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Growden v. State, 372 So. 2d 930 (Fla. 1979)
- Reddick v. State, 380 So. 2d 1330 (Fla. 5th DCA 1980)
- Huff v. State, 350 So. 2d 123 (Fla. 2d DCA 1977)