MARC LEONARD RUSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marc Russ was convicted of trafficking in cocaine and other drug offenses. The court reversed his cocaine trafficking conviction, holding that the trial court erred by refusing to instruct the jury on simple possession of cocaine as a lesser included offense, and remanded for a new trial on that charge while affirming all other convictions.
The court held that simple possession of cocaine is a permissive lesser included offense of trafficking where the information alleges trafficking by delivery or possession, and an instruction on such a lesser included offense must be given when both the pleadings and evidence support it. Therefore, the trial court erred in refusing the instruction.
[1] A trial court errs by refusing to instruct the jury on a requested lesser-included offense when the charging instrument alleges the elements of that offense.
[2] A defendant is entitled to a jury instruction on a permissive lesser-included offense if the charging instrument alleges the elements of that offense.
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Join FLexlaw to unlock all legal intelligence“A permissive lesser included offense is an offense that may or may not be included in the offense charged depending on the pleadings and the evidence.”
Defines the legal standard for when lesser included offense instructions must be considered
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Join FLexlaw to unlock all legal intelligenceRuss was charged with five counts: trafficking in 400 grams or more of cocaine, possession of twenty grams or more of marijuana, possession of drug pa…
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PER CURIAM.
The appellant, Marc Leonard Russ, challenges the judgments and sentences imposed upon him in connection with a five count information filed against him. A jury found the appellant guilty as charged of trafficking in 400 grams or more of cocaine, possession of twenty grams or more of marijuana, possession of drug paraphernalia, and operation of a crack house. The appellant pled nolo contendere to the remaining charge, grand theft.
Although the appellant filed a notice of appeal challenging all of the judgments and sentences imposed upon him as a result of this five count information, the only argument he raises on appeal concerns the trafficking in cocaine charge. We agree with the appellant’s contention that the trial court erred by refusing to instruct the jury on simple possession of cocaine as a lesser included offense of trafficking in 400 grams or more of cocaine. We, accordingly, reverse and remand for a new trial on that charge and affirm the trial court in all other respects.
A permissive lesser included offense is an offense that may or may not be included in the offense charged depending on the pleadings and the evidence. Amado v. State, 585 So. 2d 282 (Fla.1991). As long as the evidence supports it, simple possession of cocaine is a permissive lesser included offense of trafficking in cocaine where the information alleges trafficking by sale, manufacture, delivery, or possession. Amado. The record here indicates that the charging document alleged that appellant committed the offense of trafficking by delivery or possession of cocaine. Thus, according to Amado, the pleadings here demonstrate that possession of cocaine is a permissible lesser included offense of the greater charge. See also State v. Weller, 590 So. 2d 923 (Fla.1991) (conspiracy to deliver is a permissive lesser included offense of conspiracy to traffic in 400 grams or more of cocaine, where conspiracy to deliver was charged in connection with conspiracy to traffic).
An instruction on a permissive lesser included offense must be given when the pleadings and evidence demonstrate that the lesser offense is included in the charged offense. Amado. The record here indicates that the pleadings and the evidence adduced at trial supported an instruction on simple possession. Accordingly, it was error for the trial court to deny appellant’s request for an instruction on simple possession of cocaine. Amado; see also Weller. We reverse the conviction of trafficking in 400 grams or more of cocaine and remand for a new trial on that charge.
Affirmed in part, reversed in part, and remanded.
RYDER, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur.
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Hill v. State, 873 So. 2d 491 (Fla. 1st DCA 2004)…n of cocaine. So long as the evidence supports it, simple possession of cocaine is a permissive lesser included offense of trafficking in cocaine where the information alleges trafficking by sale, manufacture, delivery, or possession. Russ v. State, 612 So. 2d 688, 689 (Fla. 2d DCA 1993); see In Re Standard Jury Instructions, 723 So. 2d 123, 125 (Fla.1998)(holding simple possession to be a category 2 lesser offense of trafficking). In the case before us, the information charged that Hill did sell, purchase, m…
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Pepitone v. State, 846 So. 2d 640 (Fla. 2d DCA 2003)…er the defendant’s objection only when the allegations within the information and the evidence at trial support the instruction. See State v. Johnson, 601 So. 2d 219, 220 (Fla.1992); see also Amado v. State, 585 So. 2d 282 (Fla.1991); Russ v. State, 612 So. 2d 688, 689 (Fla. 2d DCA 1993). Florida Rule of Criminal Procedure 3.510(a) provides that “[t]he judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense.” When the defendant is impro…
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Higgs v. State, 948 So. 2d 1024 (Fla. 2d DCA 2007)…se charged depending on the pleadings and the evidence .... An instruction on a permissive lesser included offense must be given when the pleadings and evidence demonstrate that the lesser offense is included in the charged offense. Russ v. State, 612 So. 2d 688, 689 (Fla. 2d DCA 1993) (citing Amado v. State, 585 So. 2d 282 (Fla.1991)); see also Fla. R.Crim. P. 3.510(b).1 The pleadings and the evidence adduced at trial supported the requested instruction. Nevertheless, the trial court’s refusal to give the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Weller, 590 So. 2d 923 (Fla. 1991)
- Amado v. State, 585 So. 2d 282 (Fla. 1991)