RICKIE LEE HENRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rickie Lee Henry was convicted of armed robbery and sentenced to 15 years. He appealed, arguing the trial court erred by refusing to instruct the jury on attempted robbery. The appellate court affirmed, holding that Florida Rule of Criminal Procedure 3.510 prohibits attempted offense instructions when the evidence proves only a completed crime.
The trial court properly refused the attempted robbery instruction. Florida Rule of Criminal Procedure 3.510 prohibits jury instructions on attempts when the only evidence proves a completed offense.
[1] A jury instruction on an attempt to commit an offense is not required when the evidence only supports a completed offense and does not support a mere attempt.
[2] Florida Rule of Criminal Procedure 3.510(a) prohibits a jury instruction on an attempt when the evidence proves a completed offense and there is no evidence to support a…
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Join FLexlaw to unlock all legal intelligence“The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.”
Establishes the controlling rule from Florida Rule of Criminal Procedure 3.510 that prohibits attempt instructions when evidence proves only a completed crime
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Join FLexlaw to unlock all legal intelligenceHenry entered a convenience store, demanded money from the cash register, and when the clerk expressed skepticism, pushed the register button, opened …
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DOWNEY, Judge.
Appellant was charged and convicted of armed robbery and sentenced to fifteen years in prison.
The robbery occurred at a convenience store when appellant entered and demanded the money in the cash register. When the clerk responded: “You got to be kidding,” appellant advised her he was not kidding and he pushed the button on the register, opened it, and took over $100. When arrested forty-five minutes later, he had only some change in his possession.
At trial appellant requested the jury be instructed on attempted robbery. However, the trial court instructed on lesser included offenses, but refused the attempt instruction because there was no evidence to support the mere attempt; rather the evidence supported the completed crime of robbery.
Appellant contends it was error not to charge on attempted robbery under sew eral theories that we have considered and reject.
A more serious question raised by appellant is that the court was required to instruct on attempts even though in the judge’s opinion the facts establish guilt of the crime charged rather than the attempt. For this position appellant relies upon State v. Bruns, 429 So. 2d 307 (Fla.1983).
The old rule requiring an instruction on attempts was set forth initially in the oft cited ease of Brown v. State, 206 So. 2d 377 (Fla.1968). Since that time both the Florida Rules of Criminal Procedure and the Florida Criminal Standard Jury Instructions pertaining to this question have been changed. The criminal procedure rule applicable to this case, Florida Rule of Criminal Procedure 3.510(a), states:
Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.
Thus, it appears the rule prohibits an attempt instruction on a criminal episode that has reached fruition.
The Florida Standard Jury Instructions in Criminal Cases (1981 Edition) contains a schedule of lesser included offenses. In the robbery portion thereof attempts are placed in the new category two, which requires instructions only where the pleading and proof coincide. Fla.Std. Jury Instr. (Crim), p. 266.
We hold, therefore, that Rule 3.510 controls the question at hand and precludes instructions on attempts where the only evidence proves a completed offense. While conceding the Bruns reference to Brown v. State, supra, causes some concern, we would dispose of that problem by suggesting that the reference to Brown, taken in context, is simply a restatement of what the Brown court had held in 1968. The reference was not meant to overrule the provisions of Rule 3.510 or the new Standard Jury Instruction.
Accordingly, we affirm the judgment appealed from.
AFFIRMED.
LETTS and HERSEY, JJ., concur.
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D'Ambrosio v. State, 736 So. 2d 44 (Fla. 5th DCA 1999)…, 591 So. 2d 279 (Fla. 5th DCA 1991), dismissed, rev. den., 634 So. 2d [*46] 626 (Fla.1994) (attempt instruction is not to be given where only evidence proves a completed offense); Pride v. State, 511 So. 2d 1068 (Fla. 1st DCA 1987); Henry v. State, 445 So. 2d 707 (Fla. 4th DCA 1984); see also Gillespie v. State, 440 So. 2d 8, 10 (Fla. 1st DCA 1983), rev. den., 475 So. 2d 222 (Fla.1985) (“Even if the evidence is overwhelming that the defendant was guilty of the crime with which he is charged, the court must g…
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Wilson v. State, 622 So. 2d 31 (Fla. 1st DCA 1993)…isted under Category 2 for both sexual battery and lewd and lascivious assault. 543 So. 2d at 1236. An instruction on a permissible lesser included (Category 2) offense must be given “only where the pleading and proof coincide,” see Henry v. State, 445 So. 2d 707, 708 (Fla. 4th DCA 1984), and “the pleadings and the evidence demonstrate that the lesser offense is included in the offense charged.” Cooper v. State, 512 So. 2d 1071, 1072 & n. 1 (Fla. 1st DCA 1987). (Emphasis in original.) See State v. Weller, 59…
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Jones v. State, 492 So. 2d 1124 (Fla. 3d DCA 1986)…is not, in my view, contrary to this analysis inasmuch as it was decided under the predecessor to Rule 3.510(a).2 I am supported in this view of the law by recent decisions of both the Fourth and Fifth District Courts of Appeal. See Henry v. State, 445 So. 2d 707 (Fla. 4th DCA 1984);3 Lunsford v. State, 426 So. 2d 1178 (Fla. 5th DCA 1983).4 B Where a trial court erroneously instructs a jury on a lesser offense, which is not a proper lesser offense of the crime for which the defendant is charged, and the ju…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. Bruns, 429 So. 2d 307 (Fla. 1983)