THOMAS F. WILSON, JR., PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A trial court is not required to instruct a jury on attempt if the only evidence proves the completed offense and the defendant denies any involvement.
Victims testified that the defendant completed charged offenses, while the defendant totally denied committing any offense. The defendant requested a …
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GRIMES, Justice.
We review Wilson v. State, 622 So. 2d 31 (Fla. 1st DCA 1993), in which the court certified the following as a question of great public importance:
WHERE THE VICTIMS TESTIFY THAT THE DEFENDANT COMPLETED THE CHARGED OFFENSES OF CAPITAL SEXUAL BATTERY OF A VICTIM UNDER 12 AND LEWD AND LASCIVIOUS ASSAULT, AND THE DEFENDANT TOTALLY DENIES COMMISSION OF ANY OFFENSE, IS A TRIAL COURT REQUIRED TO INSTRUCT A JURY ON ATTEMPT IF REQUESTED TO DO SO BY THE DEFENDANT? Id. at 37. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.
We answer the certified question in the negative. Florida Rule of Criminal Procedure 3.510 specifies that the jury shall not be instructed upon attempt “if there is no evidence to support such attempt and the only evidence proves the completed offense.” The court below properly explained that attempts are to be treated as category two lesser included offenses. We disapprove Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989), review denied, 574 So. 2d 140 (Fla.1990), to the extent that it stated, albeit in another context, that an attempt was a necessarily lesser included offense. We do not address the other questions raised by Wilson.
We approve the decision below.
It is so ordered.
BARKETT, C.J., and OVERTON, McDonald, SHAW, KOGAN and HARDING, JJ., concur.
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Richards v. State, 738 So. 2d 415 (Fla. 2d DCA 1999)…357. Fourth, “vaginal” and “sexual organ” are not equivalent terms. We agree with the Fourth District’s discussion of legislative intent in Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989), disapproved in part on other grounds, Wilson v. State, 635 So. 2d 16 (Fla.1994). In the process of amending these statutes in the early 1970s, the legislature chose to use an accurate definition of vagina, and used sexual organ as a more generic term comparable to “private part.” In Pate, 656 So. 2d 1323, the Fifth…
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D'Ambrosio v. State, 736 So. 2d 44 (Fla. 5th DCA 1999)…lso note, but do not decide as clear error, that an instruction on attempted sexual battery should have been given. The evidence did not eliminate the need for this requested instruction. Wilson v. State, 622 So. 2d 31 (Fla. 1st DCA 1993), approved, 635 So. 2d 16 (Fla.1994) (absolutely no evidence of attempt; evidence only allowed jury to choose that appellant committed the completed crimes as charged or that he neither committed nor attempted any of the crimes charged); Randolph v. State, 591 So. 2d 279 (Fl…
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Watkins v. State, 705 So. 2d 938 (Fla. 5th DCA 1998)…m dies; perhaps aggravated battery or aggravated assault (depending on the pleadings and the facts) if the victim lives. Since proof of a completed crime will not permit instructing the jury on an attempt to commit that crime — see Wilson v. State, 635 So. 2d 16 (Fla.1994); Rule 3.510, Fla. R.Crim. P. — proof of a completed act should prevent sending to the jury the issue of whether the defendant attempted to commit that act when such proof is essential to establish the crime charged. The supreme court in…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Firkey v. State, 557 So. 2d 582 (Fla. 4th DCA 1989)
- Wilson v. State, 622 So. 2d 31 (Fla. 1st DCA 1993)