DEVARD B. BURNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Devard Burney appeals his conviction for possession of a firearm by a convicted felon. The appellate court affirms the conviction, holding that although attempted possession is a recognized crime, no reversal is warranted here because there was no evidence supporting the lesser included offense and new jury instruction standards effective July 1, 1981 would not require such an instruction on retrial.
Although attempted possession of a firearm by a convicted felon is a recognized crime and lesser included instructions are ordinarily required, reversal is not warranted here because no evidence at trial supported the lesser offense and the new standard jury instructions effective July 1, 1981 eliminated the requirement to charge lesser included offenses not supported by the evidence.
[1] A jury instruction for a lesser included offense is not required when there is no evidence to support the lesser offense.
[2] A court is not required to grant effectual relief or perform a useless act.
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Join FLexlaw to unlock all legal intelligence“This court has recognized that there does exist the crime of attempted possession of a firearm by a convicted felon.”
Establishes that attempted possession is a valid lesser included offense
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Join FLexlaw to unlock all legal intelligenceDevard Burney was convicted of possession of a firearm by a convicted felon. At trial, Burney requested a jury instruction on attempted possession of …
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CAMPBELL, Judge.
Devard B. Burney appeals his conviction and sentence for possession of a firearm by a convicted felon on several grounds. We feel that none of the grounds are meritorious and affirm. In doing so, however, we fell we should comment on the issue raised by the appellant concerning the trial court’s refusal to give the appellant’s requested instruction on attempted possession of a firearm by a convicted felon. The appellant preserved the issue by properly objecting to the court’s failure to give the requested instruction.
This court has recognized that there does exist the crime of attempted possession of a firearm by a convicted felon. Porter v. State, 363 So. 2d 41 (Fla.2d DCA 1978).
Ordinarily, we would be required to reverse for failure to give the required instruction. Lomax v. State, 345 So. 2d 719 (Fla.1977); State v. Terry, 336 So. 2d 65 (Fla.1976).
Those cases speak in terms of requiring lesser included instructions even when the trial court believes the evidence adduced was not reasonably susceptible to an inference by the jury which would support the lesser included offense. In the case for review here, there was no evidence at all that would support the lesser offense of attempted possession. Regardless, were it not for the new standard jury instructions, effective July 1, 1981, we would still be forced to reverse. In the Matter of the Use by Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, Nos. 56,734 and 58,799 (Fla. Apr. 16, 1981).
The Florida Supreme Court indicated that a charge of a lesser included offense is not required when not supported by the evidence at trial. Id., slip op. at 4—6. The new standard jury instructions would control in any retrial of the appellant’s case if we reversed.
Therefore, on a retrial appellant would not be entitled to the instruct tion on attempted possession. We are not required to do a useless act nor are we required to act if it is impossible for us to grant effectual relief. Since no practical result can be attained by ordering a retrial on the failure to give the charge of attempted possession of a firearm by a convicted felon, we affirm. See In re Estate of Lindsay, 207 So. 2d 736 (Fla. 4th DCA 1968).
BOARDMAN, A. C. J., and RYDER, J., concur.
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Citator
Cited By (19 total)
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Wheat v. State, 433 So. 2d 1290 (Fla. 1st DCA 1983)…. Similarly, it is not error to refuse to give a charge on attempt when the only evidence in the case reveals a consummated crime. See Boston v. State, 411 So. 2d 1345 (Fla. 1st DCA), pet. for rev. den., 418 So. 2d 1278 (Fla.1982); Burney v. State, 402 So. 2d 38 (Fla. 2d DCA 1981). If there was any evidence whatsoever that the crime was not consummated then it would be error to refuse to give a jury instruction on attempt. If that portion of Fla.R.Crim.P. 3.510 stating “[t]he judge shall not instruct on an…
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Boston v. State, 411 So. 2d 1345 (Fla. 1st DCA 1982)…committed. We think it cannot be disputed that the evidence in the case would require a finding that either the offense of possession of a weapon by a state prisoner was committed or no offense was committed. Accordingly, we follow Burney v. State, 402 So. 2d 38 (Fla. 2nd DCA 1981), and hold that, since upon retrial appellant would not be entitled to the attempt instruction because of changes in the Rules of Criminal Procedure which now provide that the attempt instruction shall not be given if the only evi…
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Bradley v. State, 480 So. 2d 647 (Fla. 2d DCA 1985)…ew point total, however, corresponds to the same recommended sentence range. Therefore, reversal and remand for re-sentencing would be a useless act and would serve no purpose. Dewberry v. State, 472 So. 2d 792 (Fla. 1st DCA 1985); Burney v. State, 402 So. 2d 38 (Fla. 2d DCA 1981). See Toney v. State, 456 So. 2d 559 (Fla. 2d DCA 1984). Affirmed. DANAHY, A.C.J., and SCHOONOVER and HALL, JJ., concur.…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lomax v. State, 345 So. 2d 719 (Fla. 1977)
- State v. Terry, 336 So. 2d 65 (Fla. 1976)
- In re Est. of Philip E. Lindsay, 207 So. 2d 736 (Fla. 4th DCA 1968)
- Porter v. State, 363 So. 2d 41 (Fla. 2d DCA 1978)