GLENN PRYOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court's failure to instruct the jury on a permissive lesser included offense was harmless error, but erred in assessing victim injury points and convicting on two counts arising from the same act.
[1] A trial court's failure to instruct the jury on a category two permissive lesser included offense is harmless error if the offense is not the next immediate lesser-includ…
[2] A conviction on multiple counts arising from the same act or incidents occurring at the same time implicates double jeopardy.
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Join FLexlaw to unlock all legal intelligenceGlenn Pryor was convicted of four counts of indecent assault upon a child. He appealed, arguing the trial court erred in jury instructions, sentencing…
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POLEN, J.
Glenn Pryor timely appeals after a jury convicted him of four counts of indecent assault upon a child under sixteen. Of the four points he raises on appeal, we reverse on two.
Pryor was charged with four counts of indecent assault upon the fifteen-year old victim. Each count specified the type of assault that allegedly occurred on the date in question. The evidence at trial supported the charges.
However, Pryor contends that the court erred in failing to instruct the jury on the category two permissive lesser included offense of unnatural and lascivious act. The trial court, nevertheless, instructed the jury on the other permissive lesser included offenses of attempt, assault, and battery. Thus, while the trial court should have given the instruction, see Williams v. State, 627 So. 2d 1279 (Fla. 1st DCA 1993), we hold that its failure to do so was harmless. See State v. Abreau, 363 So. 2d 1063, 1064 (Fla.1978)(holding only the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible).
Pryor then argues, and the state concedes, that the trial court erred in assessing a total of 160 points for victim injury instead of 120 points. Based on our review of the record, we agree. See May v. State, 721 So. 2d 741 (Fla. 5th DCA 1998). Accordingly, we remand for resentencing.
He also argues that the court should have granted Pryor’s motion for judgment of acquittal as to Count I or II. We agree. Neither the information nor evidence at trial showed that the subject incidents occurred at different times or arose from separate acts. As such, convicting him of both counts implicated double jeopardy. See Fjord v. State, 634 So. 2d 714, 715 (Fla. 4th DCA 1994); Audano v. State, 641 So. 2d 1356, 1361 (Fla. 2d DCA 1994). Accordingly, we remand this case and direct the trial court to adjudicate and sentence Pryor on only one of these two counts.
As to the other issues raised in Pryor’s appeal, we affirm as unpersuasive.
AFFIRMED in part; REVERSED in part and remanded.
DELL and STONE, JJ., concur.
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Eaddy v. State, 789 So. 2d 1093 (Fla. 4th DCA 2001)…as to how much time, if any, elapsed between the inappropriate touchings. Accordingly, to deem the acts separate and distinct in this case, as the State argues, would violate the Defendant’s right to be free from double jeopardy. See Pryor v. State, 755 So. 2d 155 (Fla. 4th DCA 2000). In sum, the State did not sufficiently prove the allegation in Count III that the Defendant fondled the victim’s vagina. Because there was no evidence to support the jury’s guilty verdict on Count III, the trial court erred in…
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King v. State, 834 So. 2d 311 (Fla. 5th DCA 2003)…as to how much time, if any, elapsed between the inappropriate touchings. Accordingly, to deem the acts separate and distinct in this case, as the State argues, would violate the Defendant’s right to be free from double jeopardy. See Pryor v. State, 755 So. 2d 155 (Fla. 4th DCA 2000). Id. at 1094-95. The Second District Court has addressed this same issue and reached the same conclusion. In Morman v. State, 811 So. 2d 714 (Fla. 2d DCA 2002), the defendant claimed a double jeopardy violation for convictions…
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Cowboy Sherrer v. State, 898 So. 2d 260 (Fla. 1st DCA 2005)…ion 800.02, and thus the trial court erred in failing to give the requested instruction. The trial court’s error was nevertheless harmless, because the court did instruct the jury on simple battery as a lesser-included offense.1 See Pryor v. State, 755 So. 2d 155 (Fla. 4th DCA 2000). See also State v. Abreau, 363 So. 2d 1063, 1064 (Fla.1978) (deciding that when a defendant is charged with offense “A” and the jury is instructed on “A” and “B,” a lesser-included offense one step removed from “A,” but is not in…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Audano v. State, 641 So. 2d 1356 (Fla. 2d DCA 1994)
- Williams v. State, 627 So. 2d 1279 (Fla. 1st DCA 1993)
- D & D Hotdogs & Beef, Inc. v. Plantation Fountains Assocs. Ltd. P'ship, 634 So. 2d 714 (Fla. 4th DCA 1994)
- Fjord v. State, 634 So. 2d 714 (Fla. 4th DCA 1994)
- MAY v. State, 721 So. 2d 741 (Fla. 5th DCA 1998)
- Fla. Rock Indus., Inc. v. Alachua Cnty., 721 So. 2d 741 (Fla. 1st DCA 1998)