HAROLD DALE STEPHENS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not err in refusing to instruct the jury on robbery without a weapon, as it was not a necessarily included offense one step removed from robbery with a firearm.
Appellant was convicted of robbery with a firearm. He requested an instruction on robbery without a weapon, arguing it was a necessarily included offe…
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ORFINGER, Judge.
Appellant raises only one point on appeal from his conviction for robbery with a firearm. He contends that the trial court erred in refusing to give to the jury his requested instruction on robbery without a weapon (strong arm robbery), which he says is a category III necessarily included offense one step removed from the offense of robbery with a firearm, so as to require reversal under the principles announced in Brown v. State, 206 So. 2d 377 (Fla.1968). We disagree and affirm.
The refusal to give an instruction on a lesser included offense one step removed from the crime for which a defendant is convicted is reversible error. State v. Abreau, 363 So. 2d 1063 (Fla.1978), cert, denied 376 So. 2d 68 (1979); Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980). Put another way, if the offense on which the instruction is refused is not two or more steps removed from the crime for which a defendant is convicted, the error is not harmless. Butler v. State, 379 So. 2d 715 (Fla. 5th DCA 1980).
Here, appellant was charged with (and convicted of) robbery with a firearm under section 812.13(2)(a), Florida Statutes (1977). That section proscribes robbery with a firearm or a deadly weapon. Appellant contends that robbery with a weapon, section 812.13(2)(b), is not a necessarily included offense of robbery with a firearm or other deadly weapon because the statutory definition of “weapon”1 excludes a firearm from its terms. The logic of the argument escapes us. The offense of robbery with a weapon is a lesser included offense of robbery with a firearm or deadly weapon. Growden v. State, 372 So. 2d 930 (Fla.1979), and is one step removed therefrom. Thus, it follows that the requested instruction was for a crime two steps removed from the crime for which appellant was convicted, and thus the error, if any, in refusing to so instruct the jury was harmless.
The judgment of conviction is affirmed.
COBB and SHARP, JJ., concur. . § 790.001(13), Fla.Stat. (1977).
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State v. Jacques Simone, 431 So. 2d 718 (Fla. 3d DCA 1983)…offense (and thus, a “necessarily-included” lesser offense) of manslaughter. The failure to instruct on a lesser included offense one-step removed from that for which the defendant was convicted was held to be reversible error in Stephens v. State, 396 So. 2d 741 (Fla. 5th DCA 1981). We recognize that the Schedule is presump [*722] tively correct, Ray v. State, 403 So. 2d 956, 961 n. 7 (Fla.1981), and that Stephens correctly applied Brown I to its facts (not involving a homicide). However, the instant case,…
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Davis v. State, 197 So. 3d 615 (Fla. 5th DCA 2016)…firearm during the commission of the crimes. We hold that it was error to list robbery with a deadly weapon as a lesser-included offense on the verdict forms in these cases. See Growden v. State, 372 So. 2d 930, 931 (Fla.1979); Stephens v. State, 396 So. 2d 741, 742 (Fla. 5th DOA 1981); Deleon v. State, 66 So. 3d 391, 394-95 (Fla. 2d DCA 2011). Furthermore, the verdicts and special findings were inconsistent. See Starling v. State, 152 So. 3d 868, 868 (Fla. 1st DCA 2014); Nettles v. State, 112 So. 3d 782,…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980)
- Growden v. State, 372 So. 2d 930 (Fla. 1979)
- Flozell Butler v. State, 379 So. 2d 715 (Fla. 5th DCA 1980)