LARRY MERRITT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed Larry Merritt's kidnapping conviction because the trial court erroneously refused to instruct the jury on false imprisonment as a necessarily included lesser offense, a harmless error that was eliminated by a Florida Supreme Court decision issued before trial. The court also reversed the sentencing for failure to provide written reasons for departing from sentencing guidelines.
The trial court's refusal to instruct on false imprisonment as a necessarily lesser included offense of kidnapping requires reversal of the kidnapping conviction for a new trial, as judges have no discretion in whether to give requested instructions on necessarily lesser included offenses. The sentencing must also be reversed because the trial court failed to provide written reasons for departing from the guidelines, and the court must on remand either set forth valid reasons for departure or sentence within the guidelines.
[1] A trial court must instruct the jury on a necessarily lesser included offense when requested by the defendant.
[2] Failure to instruct the jury on a necessarily lesser included offense is a harmful error that requires reversal of the conviction.
Previewing 2 of 5 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“The trial judge has no discretion in whether to instruct the jury on a necessarily lesser included offense.”
Establishes the mandatory nature of the trial court's duty to instruct on necessarily lesser included offenses, making the refusal to instruct on false imprisonment reversible error.
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Join FLexlaw to unlock all legal intelligenceOn November 23, 1988, the Florida Supreme Court in State v. San-born disapproved prior Fourth District decisions holding that false imprisonment was n…
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PER CURIAM.
Appellant was charged in an eleven-count indictment, charging him with five counts of sexual battery, two counts of robbery, kidnapping, burglary, attempted sexual battery, and simple battery. At the close of the state’s case, the trial court granted appellant’s motion for judgment of acquittal as to three of the sexual battery counts and one of the robbery counts. Appellant requested that a false imprisonment instruction be given to the jury as a lesser included offense of kidnapping. This request was denied. Appellant was ultimately convicted of two counts of sexual battery with threatened use of a deadly weapon or use of physical force likely to cause serious personal injury (one vaginal and one oral), kidnapping, grand theft of an automobile, assault, petty theft of a purse, trespass of an occupied conveyance, and battery. Appellant was sentenced to two consecutive life sentences on the sexual battery convictions, another consecutive life imprisonment on the kidnapping conviction, plus another consecutive five years for the grand theft of the automobile.
I
This court has the unfortunate task of reversing the defendant’s conviction for kidnapping and subjecting the victim to more emotional pain because of a harmful error at trial which could and should have been avoided by diligence on the part of the assistant state attorney, defense counsel and the trial court.
On November 23, 1988, in State v. San-born, 533 So. 2d 1169 (Fla.1988), the supreme court disapproved this court’s decision in Williamson v. State, 510 So. 2d 335 (Fla. 4th DCA 1987), and, sub silencio, Rauso v. State, 425 So. 2d 618 (Fla. 4th DCA 1983). As a result of the decision in San-born, in November, 1988, when this case came to trial in late February, 1989, false imprisonment was a necessarily included offense of the crime of kidnapping in every appellate district and judicial circuit.
The trial judge has no discretion in whether to instruct the jury on a necessarily lesser included offense. State v. Wimberly, 498 So. 2d 929, 932 (Fla.1986). “The requirement that a trial judge must give a requested instruction on a necessarily lesser included offense is bottomed upon a recognition of the jury’s right to exercise its ‘pardon power.’ ” Id. (citing State v. Baker, 456 So. 2d 419, 422 (Fla.1984)). Since the trial judge did not instruct the jury on false imprisonment as a necessarily lesser included offense of kidnapping, the kidnapping conviction must be reversed for a new trial. See De Parias v. State, 562 So. 2d 434 (Fla. 3d DCA 1990).
II
Appellant contends that the trial court erred in departing from the guidelines based on the scoresheet total. The recommended range, based on the total score, called for life imprisonment. The imposition of consecutive sentences based on counts arising from the same incident, when those convictions were taken into account in computing a recommended sentence, is a deviation from the guidelines. Robinson v. State, 520 So. 2d 1 (Fla.1988); Rease v. State, 493 So. 2d 454 (Fla.1986).
The rules of law that emerge from Pope v. State, 561 So. 2d 554, 556 (Fla.1990), and Betancourt v. State, 552 So. 2d 1107 (Fla.1989), are that if the sole error is the failure to reduce the reasons for a departure sentence to writing, the trial court is limited on remand by the guidelines; but if the record indicates that the trial court did not realize that the sentence was a departure, and as a result fails to reduce its reasons to writing, the trial court may depart from the guidelines on remand and set forth valid, written reasons. The facts of the instant case are indistinguishable from those in Betancourt, where the trial court apparently did not realize that the sentence was a departure, thus the latter rule applies. Accordingly, while we reverse the sentence on remand, we direct the trial court to set forth valid reasons for departure or to sentence within the guidelines.
LETTS, GLICKSTEIN and GARRETT, JJ., concur.
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Wood v. State, 593 So. 2d 557 (Fla. 5th DCA 1992)…ial court may consider the imposition of a departure [*558] sentence. State v. Betancourt, 552 So. 2d 1107 (Fla.1989); Green v. State; Henderson v. State, 577 So. 2d 653 (Fla. 1st DCA 1991), rev. denied, 589 So. 2d 291 (Fla. 1991); Merritt v. State, 567 So. 2d 1031 (Fla. 4th DCA 1990). All of the convictions are affirmed. The 60 year sentence on the armed burglary offense and the two consecutive 10 year sentences on the false imprisonment and attempted manslaughter offenses are affirmed. The life sentence on…
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Harmon v. State, 599 So. 2d 754 (Fla. 4th DCA 1992)…t the trial court did not realize that the sentence was a departure, and as a result fails to reduce its reasons to writing, the trial court may once again depart from the guidelines on remand and set forth valid, written reasons.” Merritt v. State, 567 So. 2d 1031, 1032 (Fla. 4th DCA 1990). While defense counsel did argue below that appellant’s sentence “may very well be illegal” because a prison term should not be followed by community control, he failed to cite any ease law supporting his position. In Stan…
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Twondy Gail Henderson v. State, 572 So. 2d 972 (Fla. 3d DCA 1990)…r whether a departure from the guidelines is appropriate and, if so, to set forth valid reasons for a departure. See State v. Betancourt, 552 So. 2d 1107, 1108 [*975] (Fla.1989); Roberts v. State, 547 So. 2d 129, 130-31 (Fla.1989); Merritt v. State, 567 So. 2d 1031, 1032 (Fla. 4th DCA 1990). Affirmed in part, reversed in part, and remanded; conflict certified. . This was accomplished by the defendant presenting a deposit slip to the teller in each instance, as a result of which she procured the transfer of t…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- State v. Baker, 456 So. 2d 419 (Fla. 1984)
- Robinson v. State, 520 So. 2d 1 (Fla. 1988)
- Rease v. State, 493 So. 2d 454 (Fla. 1986)
- State v. Sanborn, 533 So. 2d 1169 (Fla. 1988)
- Williamson v. State, 510 So. 2d 335 (Fla. 4th DCA 1987)
- Smith v. Louie L. Wainwright, 425 So. 2d 618 (Fla. 2d DCA 1982)
- Julita De Parias v. State, 562 So. 2d 434 (Fla. 3d DCA 1990)