JONATHAN WORTHEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Jonathan Worthey was convicted of attempted robbery after being charged with robbery. The court affirmed his conviction, holding that while the jury instructions omitted the specific intent element from the robbery charge, this was harmless error because the attempted robbery conviction—for which he was actually found guilty—explicitly required proof of intent to commit robbery.
The omission of the specific intent element from the robbery charge was not fundamental error and was harmless, because the jury was explicitly instructed that attempted robbery—the offense for which Worthey was actually convicted—required proof that he formed an intent to commit robbery, thereby necessarily establishing the required intent element.
[1] A jury instruction's omission of an element of a greater offense is not fundamental error when the jury is properly instructed on the elements of a lesser-included offens…
[2] The failure to explicitly include the specific intent element in the definition of robbery is harmless error when the jury is instructed that attempted robbery requires a…
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“in defining the lesser-included offense of attempted robbery, of which Worthey was actually found guilty, the jury was explicitly told that the charge required a finding that 'the defendant formed an intent to commit the crime of robbery.'”
Establishes that the attempted robbery instructions contained the required intent element, making the omission from the robbery definition harmless.
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Join FLexlaw to unlock all legal intelligenceWorthey was accused of robbery but the jury convicted him of the lesser-included offense of attempted robbery. The trial court's jury instructions def…
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[*1211] SCHWARTZ, Judge.
The defendant was accused of robbery and convicted of attempted robbery. Although he did not object to the omission,1 his sole contention on appeal is that fundamental error was committed because the trial court’s jury instructions did not include in the definition of robbery the specific intent to deprive which was held in Bell v. State, 394 So. 2d 979 (Fla.1981) to be an element of that crime. We are not required to address that specific issue in this case.2 This is because, in defining the lesser-included offense of attempted robbery, of which Worthey was actually found guilty, the jury was explicitly told that the charge required a finding that “the defendant formed an intent to commit the crime of robbery.”3 The elements of robbery, in turn, were said to include the taking of property by force from the possession and against the will of the victim. Under these circumstances, the court’s failure specifically to include the intent element in the definition of the greater crime — of which the defendant was impliedly acquitted4 — -was not only not fundamental error, but was affirmatively shown to have been harmless.5 Section 924.33, Florida Statutes (1979); James v. State, 393 So. 2d 1138 (Fla. 3d DCA 1981); Bolen v. State, 375 So. 2d 891 (Fla. 4th DCA 1979).
Affirmed.
. Compare Hodge v. State, 393 So. 2d 1188 (Fla. 3d DCA 1981), in which the issue was properly preserved, and the defendant’s conviction of robbery was therefore reversed.
. We similarly did not directly pass upon the - question in Smith v. State, 375 So. 2d 864 (Fla. 3d DCA 1979) since our decision in Beil that intent was not an element of robbery was still extant. In Smith, however, we did intimate a possible rejection of the fundamental error position by citing cases which require a contemporaneous objection to preserve a point for review. 375 So. 2d at 865, n.l. For what it may be worth, we note that the supreme court denied certiorari in Smith after it decided, in its initial opinion in Bell, that our view of the intent issue in both Bell and Smith was incorrect. Smith v. State, 383 So. 2d 1202 (Fla. 1980).
See also, Taylor v. State, 386 So. 2d 825, 829 (Fla. 3d DCA 1980) (no fundamental error to omit intent element in defining robbery as underlying felony of felony-murder charge.)
. All attempts are necessarily specific intent crimes, whether the relevant completed offense is or not. Gustine v. State, 86 Fla. 24, 97 So. 207 (1923); Hogan v. State, 50 Fla. 86, 39 So. 464 (1905); Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975); Groneau v. State, 201 So. 2d 599 (Fla. 4th DCA 1967), cert. denied, 207 So. 2d 452 (Fla.1967); § 777.04, Fla.Stat. (1979); R. Anderson, 1 Wharton’s Criminal Law and Procedure, § 73 (1957).
. E. g., Smith v. State, 330 So. 2d 59 (Fla. 1st DCA 1976).
. To show that the failure to charge that intent is an element of robbery itself had a harmful effect upon the present conviction, the defendant would have to demonstrate that the jury should have been instructed that attempted robbery requires an intent to intend to take property from another. Putting aside the facts that no “error” of this kind could remotely be deemed fundamental and that the concept itself would probably elude even the Kantian grasp, there is no such thing in the criminal law as an intent to intend. See, Adams v. Murphy, 394 So. 2d 411 (Fla.1981), and cases cited; Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)…t the omission in the Justice’s charge was harmless error here.8 Since the appellant’s other points are likewise without merit,9 the judgment under review is, for these reasons, Affirmed. . 394 So. 2d 979 (Fla. 1981). . In both Worthey v. State, 395 So. 2d 1210 (Fla. 3d DCA 1981), and Smith v. State, 375 So. 2d 864 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1202 (Fla.1980), although for different reasons, decisions of the present question were pretermitted. As we noted in Worthey, at note 2, however, Smi…
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Overfelt v. State, 434 So. 2d 945 (Fla. 4th DCA 1983)…e this crime. An attempt involves a specific intent. We see no reason to depart from this basic logic. In the context of this statute one cannot attempt with intent to commit a crime without any intent. This holding is supported by Worthey v. State, 395 So. 2d 1210 (Fla. 3d DCA 1981), which concluded that “all attempts are necessarily specific intent crimes, whether the relevant completed offense is or not.” (Citations omitted.) At 1211. However, our holding directly conflicts with the rationale expressed in G…
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Gentry v. State, 422 So. 2d 1072 (Fla. 2d DCA 1982)…. The jury ultimately returned a verdict of attempted second degree murder. Appellant relies upon a long line of authority which states that attempts are specific intent crimes.2 Adams v. Murphy, 394 [*1073] So. 2d 411 (Fla.1981); Worthey v. State, 395 So. 2d 1210 (Fla. 3d DCA 1981); Littles v. State, 384 So. 2d 744 (Fla. 1st DCA 1980); Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975); Groneau v. State, 201 So. 2d 599 (Fla. 4th DCA 1967). Therefore, appellant reasons that the court erred in leading the…1 / 2
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Gustine v. State, 86 Fla. 24 (Fla. 1923)
- Bell v. State, 394 So. 2d 979 (Fla. 1981)
- Hutchinson v. State, 315 So. 2d 546 (Fla. 2d DCA 1975)
- Groneau v. State, 201 So. 2d 599 (Fla. 4th DCA 1967)
- Taylor v. State, 386 So. 2d 825 (Fla. 3d DCA 1980)
- Adams v. Murphy, 394 So. 2d 411 (Fla. 1981)
- Hogan v. State, 50 Fla. 86 (Fla. 1905)
- Smith v. State, 330 So. 2d 59 (Fla. 1st DCA 1976)
- James v. State, 393 So. 2d 1138 (Fla. 3d DCA 1981)
- Metro. Dade Cnty. v. Martinez, 375 So. 2d 864 (Fla. 3d DCA 1979)