JESSIE BARRY GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jessie Barry Green appeals his conviction for sale of cannabis, challenging the trial court's refusal to instruct the jury on delivery without consideration as a lesser included offense. The appellate court affirms, holding that delivery without consideration is not a lesser included offense of sale of cannabis.
The trial court correctly denied the requested instruction because delivery without consideration is not a lesser included offense of sale of cannabis. Under Florida's Schedule of Lesser Included Offenses, the only lesser included offense to a specific charge of sale is attempted sale.
[1] Delivery of cannabis without consideration is not a lesser included offense of the crime of sale of cannabis.
[2] A lesser included offense instruction is appropriate only when the primary offense charged is sale, manufacture, delivery, or possession with intent to sell, manufacture,…
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Join FLexlaw to unlock all legal intelligence“delivery of cannabis without consideration is not a lesser included offense of the crime of sale of cannabis”
States the core holding regarding the relationship between the charged offense and the requested lesser included offense instruction
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGreen was charged with and convicted of sale of cannabis in violation of Florida Statutes section 893.13(1)(a). At trial, Green requested a jury instr…
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CAMPBELL, Judge.
Appellant, Jessie Barry Green, appeals his conviction for sale of a controlled sub stance (cannabis) in violation of section 893.13(l)(a), Florida Statutes (1983). We affirm. In doing so, we find it necessary to discuss only appellant’s first point which he raises on appeal and which he phrased as follows:
I. WHETHER THE TRIAL* COURT ERRED IN REFUSING TO GIVE APPELLANT’S REQUESTED INSTRUCTION ON DELIVERY OF A CONTROLLED SUBSTANCE WITHOUT CONSIDERATION?
At trial, appellant requested a jury instruction on delivery of less than twenty grams of cannabis without consideration, a violation of section 893.13(l)(f). The trial court denied the requested instruction on the ground that delivery of cannabis without consideration is not a lesser included offense of the crime of sale of cannabis. The trial court was correct.
Section 893.13(l)(a) provides that it is unlawful to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver a controlled substance. Section 893.13(l)(a)2 makes those offenses a felony of the third degree when the controlled substance is cannabis.
Appellant was convicted as specifically charged in Count I of the information on which he was tried with the sale of cannabis. He was not charged in the alternative language of the statute with sale, manufacture, delivery or possession. Appellant requested an instruction on delivery of cannabis without consideration, a misdemeanor of the first degree. That crime, created by section 893.13(l)(f), however, would be a lesser included offense only if the primary offense charged was delivery of more than twenty grams of cannabis. The “Schedule Of Lesser Included Offenses” to Florida Standard Jury Instructions In Criminal Cases, p. 272 (1981), makes this clear, When the primary offense is the sale, manufacture, delivery or possession with intent to sell, manufacture or deliver a controlled substance in violation of section 893.-13(l)(a), the only “Category 1” lesser offense is that provided in section 893.-13(l)(e), if possession is charged. The “Category 2” lesser offenses are attempts, except when delivery is charged, and 893.-13(l)(f), if possession or delivery of cannabis is charged. Thus, the only lesser included offense to a specific charge of sale would be an attempted sale.
Affirmed.
RYDER, C.J., and LEHAN, J., concur.
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Fletcher v. State, 491 So. 2d 354 (Fla. 5th DCA 1986)…consideration. Since appellant objected to the joinder and requested the instruction, he is entitled to it. When delivery is charged, the jury must be instructed on the lesser included offense of delivery without consideration. See, Green v. State, 459 So. 2d 351 (Fla. 2d DCA 1984). The trial court also improperly assessed court costs. The state must provide adequate notice of assessment to a defendant with full opportunity to object to the costs and any enforcement may occur only after a judicial finding…
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Antosh v. State, 510 So. 2d 1158 (Fla. 3d DCA 1987)…egory one or category two lesser offense in the crime charged in the information. This being so, no charge on this offense was required. See Hall v. State, 460 So. 2d 428 (Fla. 1st DCA 1984), review denied, 469 So. 2d 749 (Fla.1985); Green v. State, 459 So. 2d 351 (Fla. 2d DCA 1984); San Fratello v. State, 154 So. 2d 327 (Fla. 2d DCA 1963). The remaining point concerning a jury question has no merit and requires no discussion. Third, there is no statutory authority which authorizes a trial court to impose a…
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Williams v. State, 488 So. 2d 931 (Fla. 3d DCA 1986)…PER CURIAM. Affirmed. See Smith v. State, 430 So. 2d 448 (Fla.1983); Green v. State, 459 So. 2d 351, 352 (Fla. 2d DCA 1984); Fla.Std. Jury Instr. (Crim.), Comment on Schedule of Lesser Included Offenses, at 272.…