JAMES CLARKE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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James Clarke appeals his conviction for aggravated assault on a law enforcement officer and a restitution order. The appellate court reversed the conviction, holding that the trial court committed reversible error by refusing to instruct the jury on a lesser included offense that was supported by the evidence, and vacated the restitution order due to Clarke's inability to pay.
The trial court committed reversible error by refusing to instruct the jury on the lesser included offense of resisting a police officer with violence because the pleadings and evidence demonstrated this offense was included in the attempted murder charge. The restitution order is vacated because the record clearly indicates the defendant's present and potential inability to pay.
[1] A trial court commits reversible error by refusing to instruct the jury on a permissive lesser included offense when the pleadings and evidence demonstrate that the lesse…
[2] A restitution order may be vacated when the record clearly indicates the defendant's present and potential inability to pay, and the trial court notes this inability.
Previewing 2 of 4 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“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.”
Establishes the legal standard requiring jury instructions on lesser included offenses when supported by pleadings and evidence
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Join FLexlaw to unlock all legal intelligenceClarke was charged with attempted murder, a first degree felony. The information and trial evidence established the lesser included offense of resisti…
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PER CURIAM.
Defendant, James Clinton Clarke, appeals his conviction and sentence for aggravated assault on a law enforcement officer, as well as the trial court’s order requiring Clarke to make restitution. For the following reasons, we reverse that conviction and vacate the restitution order. Rule of Criminal Procedure 3.510(b) allows a jury to find a defendant guilty of the offense charged or any offense which, as a matter of law, is a necessarily included, or lesser included offense of the offense charged, if supported by the evidence. Permissive lesser included offenses are those offenses which may or may not be lesser included offenses, depending on the pleadings and evidence presented. Amado v. State, 585 So. 2d 282 (Fla.1991); 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. 585 So. 2d at 282; 509 So. 2d at 262. In the instant case, defendant was charged with attempted murder, a first degree felony. The information alleged, and the evidence adduced at trial established the lesser included offense of resisting a police officer with violence. Defendant requested that the jury be instructed on this lesser included offense, but the trial court refused.
We conclude the trial court committed reversible error when it refused the requested instruction. Amado, 585 So. 2d at 283; State v. Wimberly, 498 So. 2d 929, 931-32 (Fla.1986); Williams v. State, 579 So. 2d 754, 755 (Fla. 3d DCA 1991).
In the same proceeding, defendant was charged and thereafter convicted of grand theft. As part of his sentence as to this conviction, defendant was ordered to pay $3,829.74 in restitution. Because the record clearly indicates the defendant’s present and potential inability to pay the ordered restitution, and the trial court noted this inability in the record, that order is stricken. Medina v. State, 591 So. 2d 1085 (Fla. 3d DCA 1991); Green v. State, 571 So. 2d 571, 573 (Fla. 3d DCA 1990); see also § 775.089(6), Fla.Stat. (1991).
Defendant’s other points on appeal are without merit. Accordingly, defendant’s conviction and sentence for aggravated assault on a law enforcement officer is reversed and the case remanded to the trial court. The restitution order is vacated. The balance of the order under review is affirmed.
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Citator
Cited By
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Byrd v. State, 624 So. 2d 414 (Fla. 1st DCA 1993)…PER CURIAM. The order of restitution is VACATED. See Clarke v. State, 600 So. 2d 510 (Fla. 4th DCA 1992). ZEHMER, C.J., and BARFIELD and ALLEN, JJ., concur.…
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Suarez v. State, 779 So. 2d 665 (Fla. 3d DCA 2001)…ive lesser included offense must be given if: (1) the information alleges all of the statutory elements of the permissive lesser included offense, and (2) there is some evidence adduced at trial establishing all of the elements. See Clarke v. State, 600 So. 2d 510 (Fla. 3d DCA 1992). An instruction on a permissive lesser included offense is precluded only where “there is a total lack of evidence of the lesser crime.” Amado v. State, 585 So. 2d 282, 282-83 (Fla.1991); see also Wimberly v. State, 697 So. 2d 127…
Authorities Cited
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- Amado v. State, 585 So. 2d 282 (Fla. 1991)
- Wilcott v. State, 509 So. 2d 261 (Fla. 1987)
- Green v. State, 571 So. 2d 571 (Fla. 3d DCA 1990)
- Medina v. State, 591 So. 2d 1085 (Fla. 3d DCA 1991)
- Brookwood-Jackson Cnty. Convalescent Ctr. & Brookwood-Walton Cnty. Convalescent Ctr. v. Dep't OF Health & Rehabilitative Servs., 591 So. 2d 1085 (Fla. 1st DCA 1992)
- Williams v. State, 579 So. 2d 754 (Fla. 3d DCA 1991)