ANGELO A. DICICCO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the failure to instruct on the next immediate lesser included offense is per se reversible error, and sentencing errors require reversal.
[1] Failure to instruct on the next immediate lesser included offense constitutes per se reversible error.
[2] Giving an instruction on a lesser included offense with the same penalty as the uninstructed lesser included offense does not cure the error of failing to give the reques…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of attempted first-degree murder, possession of a firearm by a convicted felon, and auto theft. He appealed, arguing the court…
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GRIMES, Acting Chief Judge.
Appellant appeals from his convictions of attempted first-degree murder, possession of a firearm by a convicted felon, and auto theft.
In attacking his conviction for attempted first-degree murder, appellant correctly contends that the court erred in failing to give his requested instruction on the lesser included offense of attempted second-degree murder. Morgan v. State, 417 So. 2d 1027 (Fla. 3d DCA), petition for review denied, 426 So. 2d 27 (Fla.1982). The state responds by asserting that the error was harmless because the court did give an instruction on aggravated battery, a crime which carries the same penalty as attempted second-degree murder. See DeLaine v. State, 262 So. 2d 655 (Fla.1972). However, the supreme court has stated that failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible. Reddick v. State, 394 So. 2d 417 (Fla.1981); State v. Abreau, 363 So. 2d 1063 (Fla.1978). The fact that an instruction has been given on another lesser included offense carrying the same penalty does not suffice. Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA), petition for review denied, 408 So. 2d 1095 (Fla.1981); Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980).
We also find it necessary to reverse all of appellant’s sentences. At the sentencing hearing the court gave several reasons for departure but later stated that the departure was based on the fact that appellant had been determined to be a habitual offender. Yet, the only reasons put in writing were those first expressed, and at least some of them were legally insufficient. Moreover, in sentencing appellant for auto theft, the court erred in finding him to be a habitual offender because of the failure to serve him with prior written notice with respect to that crime. § 775.-084(3)(b), Fla.Stat. (1985).
We reverse appellant’s conviction of attempted first-degree murder. We affirm the other two convictions; but we reverse the sentences and remand for resentencing.
CAMPBELL and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Watkins v. State, 705 So. 2d 938 (Fla. 5th DCA 1998)…cond-degree murder is a crime in Florida and that it is a necessarily lesser included offense of attempted first-degree murder. Gentry v. State, 437 So. 2d 1097 (Fla.1983); Holland v. State, 634 So. 2d 813, 816 (Fla. 1st DCA 1994); Dicicco v. State, 496 So. 2d 864, 865 (Fla. 2d DCA 1986); Williams v. State, 462 So. 2d 577 (Fla. 4th DCA), review denied, 472 So. 2d 1182 (Fla.1985); Morgan v. State, 417 So. 2d 1027 (Fla. 3d DCA 1982), review denied, 426 So. 2d 27 (Fla.1983); Littles v. State, 384 So. 2d 744 (Fla…
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Herrington v. State, 538 So. 2d 850 (Fla. 1989)…ch, like third-degree murder, is a second-degree felony, the failure to instruct on third-degree murder cannot be deemed harmless error because third-degree murder is only one step removed from the crime charged in the information. Dicicco v. State, 496 So. 2d 864 (Fla. 2d DCA 1986); Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA), review denied, 408 So. 2d 1095 (Fla.1981); Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980). We disapprove the opinion of the court below and remand the case with directions…
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Brindley Marshall v. State, 529 So. 2d 797 (Fla. 3d DCA 1988)…s in original). Moreover, it is inconsequential that the jury in the present case was given an instruction on attempted third-degree murder, a felony of the same degree as attempted manslaughter.3 Reddick v. State, 394 So. 2d 417; Dicicco v. State, 496 So. 2d 864 (Fla. 2d DCA 1986); Hunter v. State, 389 So. 2d 661. As we said in Piantadosi v. State, 399 So. 2d 382, 384 n. 4 (Fla. 3d DCA 1981): “The Florida Supreme Court’s decision in Reddick v. State, supra, makes clear that even if the trial court gives an…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- DeLAINE v. State, 262 So. 2d 655 (Fla. 1972)
- Reddick v. State, 394 So. 2d 417 (Fla. 1981)
- Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980)
- Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA 1981)
- Morgan v. State, 417 So. 2d 1027 (Fla. 3d DCA 1982)
- Associated Television & Commc'ns, Inc. v. Cowden, 417 So. 2d 1027 (Fla. 5th DCA 1982)