WILLIE ALPHONSO JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed a drug trafficking conviction because the trial court erred in refusing a lesser-included-offense instruction on simple possession and improperly denied the defendant's request for surrebuttal regarding impeaching evidence.
A defendant charged with unlawful sale or delivery of a controlled substance is entitled to a jury instruction on simple possession as a lesser included offense, and the trial court must consider requests for surrebuttal on its merits.
[1] Simple possession is a lesser included offense of unlawful sale or delivery of a controlled substance under Florida Statutes section 893.13(1)(a), and a defendant is enti…
[2] A trial court must consider a defendant's request for surrebuttal on its merits and may not categorically refuse to allow surrebuttal regarding impeaching evidence.
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Join FLexlaw to unlock all legal intelligenceJohnson was charged in two cases with unlawful sale or delivery of or unlawful possession with intent to sell or deliver a controlled substance under …
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PER CURIAM.
Appellant, charged in two cases with “unlawful sale or delivery of or unlawful possession with intent to sell or deliver a controlled substance,” in violation of section 893.13(l)(a)l, Florida Statutes (1987), complains that the trial court erred in refusing an instruction on simple possession. We agree that defendant was entitled to an instruction on simple possession as a lesser included offense. See Fla.Std.Jury Instr. (Crim.), Schedule of Lesser Included Offenses (§ 893.13(l)(a), Fla.Stat.); Essex v. State, 539 So. 2d 559 (Fla. 4th DCA 1989).
Appellant also complains of the refusal to allow surrebuttal to the defendant to explain apparently impeaching evidence introduced by the state involving the appellant’s prior criminal record. The trial court took the position that surrebuttal was impossible and would not consider the testimony. Without knowing the nature of the proposed testimony we cannot determine whether it would have been an abuse of discretion on the part of the trial court to refuse to allow it, but he should have considered the request on its merits because surrebuttal was within his discretion to allow. Reaves v. State, 531 So. 2d 401 (Fla. 5th DCA 1988).
REVERSED and REMANDED.
SHARP, W„ COWART and GRIFFIN, JJ., concur.
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Schwartz Monzell Gainer v. State, 633 So. 2d 480 (Fla. 1st DCA 1994)…82] So. 2d 282 (Fla.1991); Hutchinson v. State, 580 So. 2d 257, 260 (Fla. 1st DCA 1991), citing State v. Daophin, 533 So. 2d 761 (Fla.1988). The failure to give the instruction requested was reversible error. Amado v. State, supra; Johnson v. State, 570 So. 2d 1158 (Fla. 5th DCA 1990). The conviction for possession of cocaine with the intent to distribute is, therefore, reversed. We affirm appellant’s convictions and sentences for attempted sale or delivery of cocaine and as a principal to the sale and deliver…
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Ewing v. State, 56 So. 3d 67 (Fla. 2d DCA 2011)…69 (Fla. 4th DCA 1996) (reversing the defendant’s conviction for possession of cocaine with intent to deliver because the trial court denied his request to instruct the jury on the lesser-included offense of possession of cocaine); Johnson v. State, 570 So. 2d 1158, 1158 (Fla. 5th DCA 1990) (finding that the defendant was entitled to an instruction on simple possession as a lesser-included offense of the unlawful sale, delivery, or possession of a controlled substance with intent to sell or deliver). In examin…
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Hovik v. State, 737 So. 2d 1207 (Fla. 5th DCA 1999)…rrebuttal evidence. See Cruse v. State, 588 So. 2d 988 (Fla.1991), cert. denied, 504 U.S. 976, 112 S.Ct. 2949, 119 L.Ed.2d 572 (1992); Frazier v. State, 24 Fla. L. Weekly D466, — So. 2d -, 1999 WL 71599 (Fla. 4th DCA Feb.17, 1999); Johnson v. State, 570 So. 2d 1158 (Fla. 5th DCA 1990). However, we find the error harmless. See State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). The testimony Hovik sought to impeach concerned her reason for evicting codefendant Robert Nacht from her home. The state’s witness, Nacht’s…
Authorities Cited
- Reaves v. State, 531 So. 2d 401 (Fla. 5th DCA 1988)
- Essex v. State, 539 So. 2d 559 (Fla. 4th DCA 1989)