ERNESTO AMADO, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court held that a trial court erred in refusing to instruct the jury on simple possession as a lesser included offense of trafficking in cocaine when the information alleged trafficking by possession, sale, manufacture, or delivery, and evidence supported the lesser offense instruction.
The trial court committed reversible error in refusing the instruction. Although possession is not a necessarily lesser included offense of trafficking, it becomes a permissible lesser included offense when the pleadings allege trafficking by possession and evidence supports the instruction. An instruction on a permissive lesser included offense must be given when pleadings and evidence demonstrate the lesser offense is included in the offense charged, and should only be precluded when there is a total lack of evidence of the lesser offense.
[1] Possession is not a necessarily lesser included offense of trafficking.
[2] A permissive lesser included offense instruction is required when the pleadings and the evidence demonstrate that the lesser offense is included in the offense charged.
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Join FLexlaw to unlock all legal intelligence“Permissive lesser included offenses are those offenses that may or may not be lesser included offenses depending on the pleadings and the evidence presented.”
Establishes the definition and test for permissive lesser included offenses
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Join FLexlaw to unlock all legal intelligenceAmado was convicted of trafficking in cocaine. The information alleged trafficking by sale, manufacture, delivery, or possession. Evidence at trial sh…
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McDonald, judge.
We review Amado v. State, 563 So. 2d 736 (Fla. 2d DCA 1990), because of direct conflict with Essex v. State, 539 So. 2d 559 (Fla. 4th DCA 1989). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash the opinion under review.
Amado was convicted of trafficking in cocaine. The issue we address is whether the trial court committed reversible error in denying Amado’s request to instruct the jury on simple possession as a lesser included offense of trafficking in cocaine.
In State v. Daophin, 533 So. 2d 761 (Fla.1988), we held that possession is not a necessarily lesser included offense of trafficking. The information in Daophin did not allege trafficking by possession, but in the instant case the information alleged trafficking by sale, manufacture, delivery, or possession. While this pleading does not affect our ruling that possession is not a necessarily lesser included offense, it does make possession a permissible lesser included offense if the evidence supports it.
Permissive lesser included offenses are those offenses that may or may not be lesser included offenses depending on the pleadings and the evidence presented. Wilcott v. State, 509 So. 2d 261, 262 (Fla.1987). An instruction on a permissive lesser included offense must be given “when the pleadings and the evidence demonstrate that the lesser offense is included in the offense charged.” Id. In the instant case, the district court held that simple possession is a permissive lesser included offense of trafficking, but ruled that the evidence did not support the instruction. Contrary to the district court’s decision, we find that the evidence presented at trial supports simple possession.
An instruction on a permissive lesser included offense should be precluded only where “there is a total lack of evidence of the lesser offense.” In re Use by Trial Courts of Standard Jury Instructions, 431 So. 2d 594, 597 (Fla.), modified, 431 So. 2d 599 (Fla.1981). As there was no such absence of evidence in the instant case, the trial court committed reversible error in refusing the requested instruction on simple possession. The fact that the evidence was overwhelming that the amount of drugs involved in this transaction exceeded twenty-eight grams does not preclude giving the instruction upon request.* We still allow juries to convict on lesser offenses under our recognition of the jury’s right to exercise its “pardon power.” State v. Wimberly, 498 So. 2d 929 (Fla.1986).
The decision under review is quashed. The cause is remanded with instructions to vacate the judgment of guilt and order a new trial. We approve Essex. To the extent it conflicts herewith, we recede from Gilford v. State, 313 So. 2d 729 (Fla.1975).
It is so ordered.
SHAW, C.J., and OVERTON, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur. *
The only controversy on the amount of drugs involved was whether it weighed 56 or 58 grams.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (55 total)
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Sanders v. State, 946 So. 2d 953 (Fla. 2006)…n of the jury’s right to exercise its ‘pardon power.’ ”) This “pardon power” allows the jury to acquit a defendant of a greater offense and convict him or her of a lesser one even though the evidence supports both crimes. See, e.g., Amado v. State, 585 So. 2d 282, 282-83 (Fla.1991) (reversing trial court’s refusal to instruct on the permissive lesser-included offense of simple drug possession on a charge of trafficking cocaine, even though the evidence overwhelmingly showed that the amount of drugs involved…
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State v. Espinosa, 686 So. 2d 1345 (Fla. 1996)…ounsel has a good faith belief that such an instruction is warranted by the evidence. “An instruction on a permissive lesser included offense should be precluded only where ‘there is a total lack of evidence of the lesser offense.’ ” Amado v. State, 585 So. 2d 282, 282-83 (Fla.l991)(quoting In re Use by Trial Courts of Standard Jury Instructions, 431 So. 2d 594, 597 (Fla.), modified, 431 So. 2d 599 (Fla.1981)). Thus, resisting arrest without violence is a permissive lesser-included offense of resisting arrest…
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Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)…would allow a defendant to request an instruction on the lesser-included offense in anticipation that the jury will exercise its “pardon power,” after which the defendant could seek reversal based on the sufficiency of the evidence. Amado [v. State, 585 So. 2d 282 (Fla.1991)] (“pardon power” allows jury to find defendant guilty of lesser-included offense even when evidence is sufficient to convict for greater offense). Such a holding would allow a defendant to essentially “sandbag” the State while committing…
Previewing 3 of 55 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re the USE BY the Trial Courts OF the Standard Jury Instructions IN Crim. Cases & the Standard Jury Instructions in Misdemeanor Cases, 431 So. 2d 594 (Fla. 1981)
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- Wilcott v. State, 509 So. 2d 261 (Fla. 1987)
- In re the USE BY the Trial Courts OF the Standard Jury Instructions IN Crim. Cases, 431 So. 2d 599 (Fla. 1981)
- Gilford v. State, 313 So. 2d 729 (Fla. 1975)
- State v. Jewel May Daophin, 533 So. 2d 761 (Fla. 1988)
- Essex v. State, 539 So. 2d 559 (Fla. 4th DCA 1989)
- Amado v. State, 563 So. 2d 736 (Fla. 2d DCA 1990)