DARRIN BERNARD ROGERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial judge erred in denying a requested jury instruction for a lesser-included offense made during closing arguments.
Defendant was charged with possession with intent to sell cocaine. During closing arguments, his counsel requested a jury instruction for simple posse…
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FARMER, Judge.
We reverse defendant’s two-count conviction for possession with intent to sell cocaine,1 and for simple possession of cocaine.2 During his closing argument and after the jury had been charged, defendant’s counsel asked the court for a jury instruction on the lesser-included charge of simple possession as to count I, possession with intent to sell or deliver. The trial judge denied the request, pointing out that he had not asked for it at the charge conference. This was error. The requested instruction was for a “permissive” lesser-included offense under the standard jury instructions for count I. See Fla.Std.Jury Instr. (Crim.) (Category 2) . Category 2 includes those offenses which may, or may not, be included in the offense charged, depending on the pleadings and proof. In this instance, count I was framed in the conjunctive, charging defendant with both sale of cocaine and possession with intent to sell cocaine. Hence, the precise charge in this case required a lesser-included instruction on simple possession, if requested, as part of the charge for count I.
Although the instruction was not requested at the charge conference, that oversight is no basis to deny a request — made during closing argument and then again after the jury charge itself — to give the lesser-included instruction. See Fla.R.Crim.P. 3.390; Thomas v. State, 591 So. 2d 259 (Fla. 4th DCA1991). The failure to give an authorized and requested lesser-included instruction is reversible error. Amado v. State, 585 So. 2d 282 (Fla.1991).
REVERSED FOR NEW TRIAL.
DELL, C.J., and STONE, J., concur. . See § 893.13(l)(a), Fla.Stat. (1991).
. See § 893.13(1)©, Fla.Stat. (1991).
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Carle v. State, 983 So. 2d 693 (Fla. 1st DCA 2008)…led substance with intent to sell, a lesser included instruction on simple possession is required to be given if requested. See State v. Abreau, 363 So. 2d 1063 (Fla.1978); Wilcox v. State, 675 So. 2d 1043, 1043 (Fla. 4th DCA 1996); Rogers v. State, 626 So. 2d 339 (Fla. 4th DCA 1993). But the state maintains that simple possession of diazepam is not a lesser included offense of possession with intent to sell diazepam, because both charges are third-degree felonies and carry the same penalty. The state charge…
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Jetindra Ramsaran v. State, 664 So. 2d 1106 (Fla. 4th DCA 1995)…ubt concerning his presence at the crime scene. See Long v. State, 42 Fla. 509, 28 So. 775, 780 (Fla.1900). Furthermore, appellant timely requested the instruction as it came before the jury had retired. See Fla. R.Crim.P. 3.390(d); Rogers v. State, 626 So. 2d 339, 340 (Fla. 4th DCA 1993); Williams v. State, 597 So. 2d 377, 379 (Fla. 2d DCA 1992). Accordingly, we reverse appellant’s conviction and remand for new trial. REVERSED and REMANDED. DELL and STONE, JJ., and MARTIN D. KAHN, Associate Judge, concur.…
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Murphy v. State, 684 So. 2d 267 (Fla. 4th DCA 1996)…section 893.13(l)(a), Florida Statutes (Supp.1994), by possessing with intent to sell, manufacture, or deliver a controlled substance, a lesser-included instruction on simple possession is required to be given if requested. See also Rogers v. State, 626 So. 2d 339 (Fla. 4th DCA 1993). Appellee concedes that the actual jury instruction on simple possession was not read, but argues that the jury instructions when taken as a whole adequately instructed the jury on the lesser included offense of possession of co…
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- Amado v. State, 585 So. 2d 282 (Fla. 1991)
- Thomas v. State, 591 So. 2d 259 (Fla. 4th DCA 1991)