MICHELLE DUVAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michelle Duval was convicted of robbery and other charges. On appeal, the Florida District Court of Appeal reversed her robbery conviction, finding that the trial court erred by refusing to instruct the jury on the lesser included offense of resisting a merchant.
The trial court erred in denying the defendant's request for a jury instruction on resisting a merchant as a lesser included offense of robbery. Because the information and trial evidence supported this lesser charge, the instruction should have been given, and therefore the robbery conviction must be reversed and remanded for a new trial.
[1] A trial court errs by failing to instruct the jury on a permissive lesser included offense when the pleadings and evidence support the lesser charge.
[2] Resisting a merchant is a permissive lesser included offense of robbery.
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Join FLexlaw to unlock all legal intelligence“Pursuant to the 1992 amendment of section 812.015(6), the charge of resisting a merchant is a permissive lesser included offense of robbery.”
Establishes the legal status of resisting a merchant as a permissive lesser included offense under the amended statute.
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Join FLexlaw to unlock all legal intelligenceDuval and a codefendant took a purse valued at $18 from a J.C. Penney display rack and left the store. A few minutes later, a J.C. Penney security gua…
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FULMER, Judge.
The defendant, Michelle Duval, was convicted of robbery, carrying a concealed weapon, possession of marijuana and obstructing or opposing an officer without violence. She appeals her robbery conviction, asserting trial and sentencing errors. We find merit only in her contention that the trial court erroneously failed to instruct the jury on the lesser included offense of resisting a merchant.
The testimony at trial established that the defendant and a codefendant, Bonnie Har-van, took a purse valued at $18 from a display rack in J.C. Penney’s and left the store. After talking with friends in the mall for a few minutes, they continued to walk through the mall. A J.C. Penney security guard approached them approximately fifty to sixty feet from the J.C. Penney’s entrance. When he showed his security badge and asked them to return to the store, both women ran. While following them, the security guard heard the defendant tell Harvan, “Get the mace, get the mace.” The security guard jumped on the defendant. During their struggle, Harvan sprayed the security guard and the defendant with mace. The defendant then escaped, but was apprehended shortly afterwards by a St. Petersburg police officer in the parking lot.
At the close of all the evidence, defense counsel requested that the jury be instructed on the charge of resisting a merchant, pursuant to section 812.015(6), Florida Statutes (1993), as a lesser included offense of robbery. The trial court denied the request and instructed the jury on the primary charge of robbery and the necessarily lesser included offense of petit theft. The jury found the defendant guilty of robbery, as charged in the information.
On appeal, the defendant seeks a new trial on the robbery conviction based on the trial court’s failure to instruct the jury on the lesser included offense of resisting a merchant. Pursuant to the 1992 amendment of section 812.015(6), the charge of resisting a merchant is a permissive lesser included offense of robbery. 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.” Wilcott v. State, 509 So. 2d 261, 262 (Fla.1987). Because the allegations in the information and the facts adduced at trial supported this lesser charge, it was error for the trial court to deny the defendant’s request. See Sanders v. State, 654 So. 2d 1279 (Fla. 2d DCA 1995). Accordingly, we reverse the defendant’s robbery conviction and remand for a new trial in which the jury may be instructed on resisting a merchant.
Reversed and remanded.
PARKER, AC.J., and NORTHCUTT, J., concur.
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Citator
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McCLENDON v. State, 765 So. 2d 247 (Fla. 1st DCA 2000)…obbery and, as he asserts, “[t]he charge of resisting a merchant is a permissive lesser included offense of robbery.” Epps v. State, 728 So. 2d 761, 762 (Fla. 2d DCA 1999); accord Maldanado v. State, 691 So. 2d 61 (Fla. 3d DCA 1997); Duval v. State, 688 So. 2d 1002 (Fla. 2d DCA 1997). “[A] lesser offense may be a category-two permissive lesser included offense if its elements are alleged in the accusatory pleading and proven at the trial.” Taylor v. State, 608 So. 2d 804, 805 (Fla.1992). “An instruction on a p…
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Epps v. State, 728 So. 2d 761 (Fla. 2d DCA 1999)…orted by the evidence adduced at trial.” State v. Weller, 590 So. 2d 923, 926 (Fla.1991) (citing Wilcott v. State, 509 So. 2d 261 (Fla.1987)). The charge of resisting a merchant is a permissive lesser included offense of robbery. See Duval v. State, 688 So. 2d 1002 (Fla. 2d DCA 1997). The State does not dispute that the evidence supported the requested jury instruction. However, as noted, it argues that the elements of the offense of resisting a merchant were not contained in the information because the inform…
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Stuckey v. State, 907 So. 2d 1208 (Fla. 5th DCA 2005)…permissive instruction must be given if requested when the information alleges all the elements of the included offense and the evidence at trial supports the instruction. See Burton v. State, 844 So. 2d 721, 722 (Fla. 2d DCA 2003); Duval v. State, 688 So. 2d 1002 (Fla. 2d DCA 1997). In the present case, however, the State carefully drafted the information so as not to allege that the items taken were merchandise, and that the owner of the items was a merchant. The information alleged that Mr. Stuckey took “…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Wilcott v. State, 509 So. 2d 261 (Fla. 1987)
- Sanders v. State, 654 So. 2d 1279 (Fla. 2d DCA 1995)