JORGE A. RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jorge Rodriguez appeals his conviction for battery on a law enforcement officer, arguing the trial court erred by refusing to instruct the jury on the necessarily lesser included offense of simple battery. The Fifth District Court of Appeal agrees and reverses, holding that trial courts must instruct juries on necessarily included lesser offenses when timely requested.
The trial court's refusal to instruct the jury on a necessarily lesser included offense when timely requested is reversible error. The issue was properly preserved for appeal because counsel's request for the specific instruction, combined with the trial court's clear denial, is sufficient to preserve the issue without further objection.
[1] A trial court must instruct the jury on a necessarily included lesser offense when a timely request is made.
[2] A request for a jury instruction is sufficiently preserved for appellate review when defense counsel clearly requests the instruction and the trial court clearly denies i…
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Join FLexlaw to unlock all legal intelligence“The trial court must instruct the jury on necessarily included lesser offenses when a timely request is made to do so.”
Establishes the mandatory nature of the trial court's duty to provide lesser included offense instructions upon request
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Join FLexlaw to unlock all legal intelligenceRodriguez was charged with battery on a law enforcement officer under Florida Statute section 784.07(2)(b). During trial, after evidence was presented…
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Jorge'A. Rodriguez appeals his conviction of battery on a law enforcement officer in violation of section 784.07(2)(b), Florida Statutes (1999). Rodriguez contends that the trial court’s failure to instruct the jury on the necessarily lesser included offense of simple battery, as requested by defense counsel, is reversible error. We agree and reverse.
During the charge conference following the presentation of the evidence, Rodriguez’s attorney requested the trial court to instruct the jury on simple battery, a category one necessarily included lesser offense of battery on a law enforcement officer. The trial judge denied the request. As the State concedes, simple battery is a necessarily included lesser offense of battery on a law enforcement officer. Mordica v. State, 618 So. 2d 301, 303-04 (Fla. 1st DCA 1993). The trial court must instruct the jury on necessarily included lesser offenses when a timely request is made to do so. State v. Wimberly, 498 So. 2d 929 (Fla.1986).
While conceding that the trial court’s failure to instruct the jury on battery is error, the State asserts that defense counsel failed to properly preserve the issue for appeal when counsel requested the battery instruction but failed to object further following the court’s denial of that request. We disagree. Once the record shows that counsel requested a specific instruction and the trial court “clearly understood the request and just as clearly denied the request,” the issue is sufficiently preserved for appellate review. State v. Heathcoat, 442 So. 2d 955 (Fla.1983). It was enough to simply request the battery charge. Jones v. State, 714 So. 2d 627, 628 (Fla. 1st DCA 1998).1
For the reasons discussed above, we reverse Rodriguez’s conviction for battery on a law enforcement officer and remand the case for a new trial.
REVERSED AND REMANDED.
SHARP, W. and PETERSON, JJ., concur. . The facts of this case are similar to those discussed in Nicolosi v. State, 783 So. 2d 1095 (Fla. 5th DCA 2001). In Nicolosi, this court reversed a conviction for battery on a law enforcement officer where the evidence only established that the officer was working an off-duty job at a night club' as there was no proof that the officer was engaged in any official police activity or criminal investigation. On retrial, the parties should make certain that the evidence satisfies the requirement of section 784.07(2) that the officer be "engaged in the lawful performance of his or her duties" as discussed in Nicolosi.
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Citator
Authorities Cited
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- State v. Heathcoat, 442 So. 2d 955 (Fla. 1983)
- Mordica v. State, 618 So. 2d 301 (Fla. 1st DCA 1993)
- Nicolosi v. State, 783 So. 2d 1095 (Fla. 5th DCA 2001)
- Jones v. State, 714 So. 2d 627 (Fla. 1st DCA 1998)