DAVID WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Wilson was convicted of robbery with a firearm, but the jury verdict form omitted the lesser included offense of simple robbery that the trial court had instructed the jury on. The appellate court reversed the conviction on count I, finding the verdict defective because it did not conform to the jury instructions.
A verdict that is not in conformance with jury instructions is clearly defective and requires reversal. The conviction on count I for robbery with a firearm is reversed with instructions to either grant a new trial or, with the state's concurrence, reduce the conviction to simple robbery.
[1] A verdict form that does not conform to jury instructions is defective.
[2] A conviction may be reduced to a lesser included offense if the jury was instructed on that offense and the omission from the verdict form was an oversight.
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Join FLexlaw to unlock all legal intelligence“A verdict that is not in conformance with the jury instructions is clearly defective.”
Establishes the legal standard for evaluating whether a verdict form that omits an instructed-upon lesser included offense requires reversal.
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Join FLexlaw to unlock all legal intelligenceWilson was charged with robbery with a firearm. At the charge conference, the parties agreed the jury should be instructed on both robbery with a fire…
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STONE, Judge.
We reverse appellant’s judgment and sentence on count I of information number 88-5940 with instructions.
The defendant was convicted of robbery with a firearm. The record reflects that the jury was instructed, at defendant’s request, as to both robbery with a firearm and the lesser included offense of robbery. However, in the course of various changes made to the verdict form, the lesser included offense was omitted. The error was not discovered until after the jury had been discharged.
The state argues that robbery with a weapon, and not robbery, is the next immediate necessarily lesser included offense to robbery while carrying a firearm. See Thompson v. State, 487 So. 2d 311 (Fla. 5th DCA), rev. denied, State v. Coleman, 494 So. 2d 1153 (Fla.1986). However, a review of this record makes it clear that there was agreement in the charge conference that the offense committed was either robbery with a firearm or robbery. The trial court did instruct the jury on the lesser included offense of robbery.
The record reflects that the verdict form was not read out loud, nor was it reviewed by counsel prior to submission to the jury. But counsel did see the verdict form during deliberations and did not discover the error at that time. Nevertheless, given the clear request by counsel for the instruction, and the circumstances that appear in the record with respect to several changes in the verdict forms, and in the absence of any objection by the state to the instructions agreed to by the court, it is clear that the omission was an oversight.
A verdict that is not in conformance with the jury instructions is clearly defective. Robertson v. State, 532 So. 2d 90 (Fla. 4th DCA 1988); Moore v. State, 496 So. 2d 255 (Fla. 5th DCA 1986).
Therefore, the judgment and sentence as to count I of information number 88-5940 is reversed with instructions to either afford the defendant a new trial or, with the concurrence of the state, to reduce the conviction to robbery.
The trial court also erred in sentencing the appellant for false imprisonment to a term in excess of the maximum provided by law. Therefore, upon remand, the term of imprisonment for false arrest shall be corrected and reduced to five years. We find no error or abuse of discretion with respect to the other issues raised.
REVERSED IN PART AND REMANDED FOR RESENTENCING OR NEW TRIAL.
WARNER and POLEN, JJ., concur.
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Morris v. State, 658 So. 2d 155 (Fla. 1st DCA 1995)
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Prater v. State, 608 So. 2d 559 (Fla. 2d DCA 1992)…1233 (Fla.1989). The verdict form, however, included only the choices guilty of burglary of a dwelling or not guilty. A verdict form, such as the one in this case, that is not in conformance with the jury instructions is defective. Wilson v. State, 566 So. 2d 36 (Fla. 4th DCA 1990). The lesser included offense of simple burglary that was omitted from the verdict form was only “one step” removed from the primary offense of burglary of a dwelling. The trial court’s omission of the lesser offense precluded t…
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Williams v. State, 579 So. 2d 754 (Fla. 3d DCA 1991)…(Fla. 5th DCA), review denied, 494 So. 2d 1153 (Fla.1986). In State v. Wimberly, 498 So. 2d 929, 932 (Fla.1986), the court held that once an “offense is a necessarily lesser included offense, an instruction must be given.” See also Wilson v. State, 566 So. 2d 36 (Fla. 4th DCA 1990) (reversing conviction based on verdict form which omitted lesser included offense); Thompson, 487 So. 2d at 311 (defendants charged with robbery while carrying a deadly weapon entitled, upon request, to instruction on necessarily…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thompson v. State, 487 So. 2d 311 (Fla. 5th DCA 1986)
- Keefe v. The City OF Hollywood, 487 So. 2d 311 (Fla. 4th DCA 1986)
- Morris v. Peggy Ann Morris (Armstrong), 496 So. 2d 255 (Fla. 1st DCA 1986)
- Moore v. State, 496 So. 2d 255 (Fla. 5th DCA 1986)
- Claudette Robertson v. State, 532 So. 2d 90 (Fla. 4th DCA 1988)