DWAYNE CRAPPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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HARRIS, Judge.
Dwayne Crapps appeals his conviction of two counts of battery on a law enforcement officer. He contends the court erred in denying his request to give the simple battery instruction as a lesser included offense. We agree and reverse.
Although not listed as a lesser included offense to the offense of battery on a law enforcement officer in the Standard Jury Instructions, nonetheless, case law makes it clear that simple battery is a lesser included offense to such a charge. Jelks v. State, 509 So. 2d 404 (Fla. 5th DCA 1987); Crumley v. State, 489 So. 2d 112 (Fla. 1st DCA 1986), approved, 512 So. 2d 183 (Fla.1987). A trial judge has no discretion on whether to instruct on a necessary lesser included offense. State v. Wimberly, 498 So. 2d 929 (Fla.1986). Such error is not harmless. Hayes v. State, 564 So. 2d 161 (Fla. 2d DCA 1990).
REVERSED for a new trial.
PETERSON and GRIFFIN, JJ., concur.
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Brown v. State, 608 So. 2d 114 (Fla. 1st DCA 1992)…sing conviction for battery on law enforcement officer, because trial court failed to give simple battery instruction). See also Macklin v. State, 590 So. 2d 1044 (Pla. 3d DCA 1991); Wyche v. State, 573 So. 2d 953 (Fla.2d DCA 1991); Crapps v. State, 566 So. 2d 62 (Pla. 5th DCA 1990). The state seeks to distinguish Wimberly on the ground that it is a 1986 decision and was therefore written prior to the May 1987 amendment to the standard jury instructions that redesignated simple battery from a category 1 nec…
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Rogers v. State, 844 So. 2d 728 (Fla. 5th DCA 2003)…(Fla. 4th DCA 1999). . Williams v. State, 792 So. 2d 1207 (Fla.2001). . Macri v. State, 689 So. 2d 1280 (Fla. 5th DCA 1997) (citing State v. Wimberly, 498 So. 2d 929 (Fla.1986); Nelson v. State, 665 So. 2d 382 (Fla. 4th DCA 1996); Crapps v. State, 566 So. 2d 62 (Fla. 5th DCA 1990)); Prater v. State, 608 So. 2d 559 (Fla. 2d DCA 1992). . Washington v. State, 758 So. 2d 1148 (Fla. 4th DCA), review denied, 786 So. 2d 1192 (Fla. 2000); Tomlinson v. State, 584 So. 2d 43, 45 (Fla. 4th DCA), review denied, 592 So…
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Williams v. State, 611 So. 2d 94 (Fla. 1st DCA 1992)…w enforcement officer, the simple battery instruction must be given so as not to deprive the jury of its pardon power. See also Ferrell v. State, 544 So. 2d 336 (Fla. 1st DCA 1989); Wyche v. State, 573 So. 2d 953 (Fla. 2d DCA 1991); Crapps v. State, 566 So. 2d 62 (Fla. 5th DCA 1990). The state concedes that Wimberly and its progeny control this case, but requests that the court certify to the supreme court the question of whether a failure to instruct on a necessarily lesser included offense may be deemed…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- Hayes v. State, 564 So. 2d 161 (Fla. 2d DCA 1990)
- State v. Crumley, 512 So. 2d 183 (Fla. 1987)
- Rossi Borgia v. State, 489 So. 2d 112 (Fla. 2d DCA 1986)
- Crumley v. State, 489 So. 2d 112 (Fla. 1st DCA 1986)
- Jelks v. State, 509 So. 2d 404 (Fla. 5th DCA 1987)