CARLOS DIPAOLA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the failure to instruct the jury on the lesser included offense of possession of cocaine, when it was a one-step lesser included offense of trafficking, constituted per se reversible error. The conviction for possession on Count II was affirmed.
Carlos Di Paola was charged with trafficking and delivery of cocaine. He was convicted of trafficking (Count I) and possession (a lesser included offe…
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PER CURIAM.
Carlos Di Paola was charged by Information with trafficking in cocaine (Count I) and delivery of cocaine (Count II). He appeals his conviction of trafficking (Count I) and possession of cocaine (a lesser included offense of the charge of delivery of cocaine, Count II).
With one exception the matters complained of by appellant, Di Paola, either do not constitute error or the error, if any, was harmless.
Appellant correctly points out that the trial court failed to instruct the jury that it could find him guilty, as to Count I, of the lesser included offense of possession of cocaine.
Possession of cocaine under Section 893.-13(l)(e), Florida Statutes (1983), is a category 1 (one step removed) lesser included offense of trafficking in cocaine under Section 893.135(l)(b), Florida Statutes. Fla. Std. Jury Instr. (Crim.), p. 274.
Failure to give an instruction on the next immediate lesser included offense is per se reversible error. State v. Abreau, 363 So. 2d 1063 (Fla.1978).
We disagree with the state’s position that there was no evidence to support a finding of possession (which would implicate Rule 3.510(b), Florida Rules of Criminal Procedure).
The conviction and sentence on Count II is affirmed. We reverse as to Count I and remand for new trial.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED FOR NEW TRIAL.
ANSTEAD, C.J., and HERSEY and HURLEY, JJ., concur.
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State v. Jewel May Daophin, 533 So. 2d 761 (Fla. 1988)…We disapprove and quash the decision below and remand for proceedings consistent with this opinion. To the extent they conflict with the decision here, we disap [*763] prove Butler v. State, 497 So. 2d 1327 (Fla. 4th DCA 1986), and DiPaola v. State, 461 So. 2d 284 (Fla. 4th DCA 1985). It is so ordered. EHRLICH, C.J., and OVERTON, McDonald and GRIMES, JJ., concur. BARKETT and KOGAN, JJ., dissent. . Daophin, 511 So. 2d at 1038: MUST A JURY BE INSTRUCTED ON SIMPLE POSSESSION OF COCAINE PURSUANT TO SECTION 8…
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Munroe v. State, 514 So. 2d 397 (Fla. 1st DCA 1987)…t the time of the appellant’s trial, possession of cocaine in violation of section 893.13(l)(e) was designated as a category 1 necessarily lesser included offense of trafficking in cocaine as proscribed by section 893.135(l)(b). In DiPaola v. State, 461 So. 2d 284 (Fla. 4th DCA 1985), the Fourth District, citing to the schedule of lesser included offenses contained in the Florida Standard Jury Instructions (Criminal), held that the failure to instruct on possession of cocaine as a lesser included offense of t…
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Hattie Butler v. State, 497 So. 2d 1327 (Fla. 4th DCA 1986)…trial court refused. The issue is whether the trial court erred in refusing to instruct the jury on simple possession as a lesser included offense to trafficking in cocaine. We conclude that it did. Appellee concedes that under Di Paola v. State, 461 So. 2d 284 (Fla. 4th DCA 1985), the trial court should have instructed the jury as to possession, but contends that Di Paola has been receded from in Rotenberry v. State, 468 So. 2d 971 (Fla.1985). Unlike Rotenberry, the present case does not involve the issue…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)