HATTIE BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Butler was convicted of trafficking in cocaine by delivery and sentenced to seven years imprisonment. The Fourth District Court of Appeal reversed the conviction, finding the trial court erred by refusing to instruct the jury on simple possession as a lesser included offense to trafficking.
The trial court erred in refusing to instruct the jury on simple possession as a lesser included offense. Under Di Paola v. State and Weller v. State, possession is a category one lesser included offense (one step removed) from trafficking, and failure to instruct on the immediate lesser included offense is per se reversible error.
[1] Possession of cocaine is a category one lesser included offense of trafficking in cocaine by delivery.
[2] A trial court errs in refusing to instruct the jury on simple possession as a lesser included offense to trafficking in cocaine when evidence of possession has been prese…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Failure to give an instruction on the next immediate lesser included offense is per se reversible error.”
Establishes that the trial court's refusal to instruct on possession as a lesser included offense constitutes reversible error as a matter of law.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceButler delivered a 'sample' of cocaine to undercover officer Dan-zella Brooks on June 26, 1985, and delivered cocaine weighing twenty-eight grams or m…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Category One Lesser Included Offense cases and more on FLexlaw
[*1328] GLICKSTEIN, Judge.
This is an appeal of a final order, adjudicating appellant guilty of trafficking in cocaine. We reverse.
Appellant was charged by information with delivery of cocaine to a police officer in an amount greater than twenty-eight grams but less than 200 grams (trafficking in cocaine by delivery), contrary to sections 893.135(l)(b)(l) and 893.03(2)(a)(4), then charged by information with delivery of cocaine to a police officer contrary to sections 893.03(2)(a)(4) and 893.13(l)(a)(l), Florida Statutes (1985). She was found guilty as charged and was sentenced to seven years imprisonment with a mandatory minimum of three years.
At trial evidence was adduced to show that appellant delivered a “sample” of cocaine to an undercover police officer, Dan-zella Brooks, on June 26, 1985, by handing it to him and, on June 28, 1985, delivered twenty-eight grams or more but less than 200 grams of cocaine to Officer Brooks’ partner, undercover police officer Evelyn Heath, by handing it to her. This evidence corresponded with the informations against appellant which charged her with trafficking in cocaine by delivery and with delivery.
At the charge conference, after agreeing on the general and entrapment instructions, the trial court and counsel addressed the specific charge instructions and the issue of lesser included offenses. On the charge of trafficking, the court and counsel were all in agreement that since trafficking was charged, in the information, as delivery, that was the only aspect of the trafficking statute that the jury would be instructed on. Appellant’s attorney then asked for lesser included offenses to trafficking of delivery or possession, at first thinking the penalties would be the same. The trial court ruled that possession would not be applicable to the eodefendant Cock-ett, who was merely present at the delivery, but agreed that simple delivery had to be charged as a lesser included offense to trafficking by delivery as to both defendants. Delivery was required to be charged because there was a question raised by the evidence as to whether the cocaine delivered weighed twenty-eight grams or more. In addition, simple delivery was also the second charge against appellant.
Appellant’s attorney then requested that possession of cocaine also be charged as a lesser included offense to trafficking by delivery and delivery, which the 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 of double jeopardy and is thus distinguishable. See Weller v. State, 11 F.L.W. 1779, 1779-80 (Fla. 4th DCA Aug. 13, 1986). See also Fla.R.Crim.P. 3.510(b).
The trial court agreed here that there was evidence presented as to possession. Under Di Paola and Weller, it erred in not instructing the jury on possession as it is a category one (one step removed) lesser included offense of trafficking. Fla.Std. Jury Instr. (Crim.) 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).
ANSTEAD, J., and WARNER, MARTHA C., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. Jewel May Daophin, 533 So. 2d 761 (Fla. 1988)…ve jurisdiction. Art. V, § 3(b)(4), Fla. Const. Respondent Daophin was convicted of trafficking in cocaine by delivery in excess of 400 grams contrary to section 893.-135(l)(b)3, Florida Statutes (1983). Relying on the authority of Butler v. State, 497 So. 2d 1327 (Fla. 4th DCA 1986), the district court reversed because the trial court had refused to instruct the jury on simple possession of cocaine, section 893.13(l)(e), Florida Statutes (Supp.1984), as a lesser included offense. In doing so, the district co…1 / 2
-
Munroe v. State, 514 So. 2d 397 (Fla. 1st DCA 1987)…ese offenses were not necessarily lesser included offenses, and, therefore, no instruction need be given. Other opinions from the Fourth District, however, directly conflict with the Fifth District’s interpretation of Rotenberry. In Butler v. State, 497 So. 2d 1327 (Fla. 4th DCA 1986), the court held, referring to its pve-Rotenberry opinion in DiPaola, and again referring to the schedule of lesser included offenses, that possession of cocaine was a category 1 necessarily lesser included offense to trafficking.…
-
Jewel May Daophin v. State, 511 So. 2d 1037 (Fla. 4th DCA 1987)…livery, which is found in the Standard Jury Instructions in Criminal Cases, would not appear, under Category 1, to require an instruction on simple possession if the charging document only alleges delivery. Id. at 1234. However, in Butler v. State, 497 So. 2d 1327 (Fla. 4th DCA 1986), this very court concluded that an instruction on the lesser included offense of simple possession is required when a defendant is charged with trafficking in cocaine by delivery. Notwithstanding, we are cognizant of possible te…1 / 2
Previewing 3 of 4 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)
- Rotenberry v. State, 468 So. 2d 971 (Fla. 1985)
- DiPAOLA v. State, 461 So. 2d 284 (Fla. 4th DCA 1985)