SAMUEL KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial court must instruct the jury on a necessarily included lesser offense, even if the victim's status as a law enforcement officer is undisputed.
Samuel King was convicted of battery on a law enforcement officer. He requested a jury instruction on the lesser included offense of simple battery, w…
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PER CURIAM.
Samuel King appeals from his conviction for battery on a law enforcement officer. As grounds, he argues the trial court reversibly erred by denying his request for a jury instruction on the lesser included offense of battery. The State correctly acknowledges the error. We reverse.
A trial court has no discretion on whether to instruct on a necessarily included lesser offense. See State v. Wimberly, 498 So. 2d 929 (Fla.1986). Simple battery is a necessarily lesser included offense of battery on a law enforcement officer. See e.g., Brown v. State, 608 So. 2d 114 (Fla. 1st DCA 1992); Jones v. State, 714 So. 2d 627 (Fla. 1st DCA 1998). “[E]ven where the evidence is undisputed that the victim is a law enforcement officer, the simple battery instruction must be given so as not to deprive the jury of its pardon power.” Williams v. State, 611 So. 2d 94, 95 (Fla. 1st DCA 1992).
Here, the trial court denied King’s request on grounds that there was no controversy as to whether the victim was a law enforcement officer. Because the trial court was required to give the instruction, King’s conviction is reversed and the case remanded for a new trial.
BENTON, POLSTON and HAWKES, JJ., concur.
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Riley v. State, 25 So. 3d 1 (Fla. 1st DCA 2008)…included offense of capital sexual battery). Because simple battery was a necessarily lesser included offense, the trial court had no discretion but to grant defense counsel’s request. See State v. Wimberly, 498 So. 2d 929 (Fla.1986); King v. State, 911 So. 2d 857 (Fla. 1st DCA 2005). The failure to give a requested instruction on a lesser included offense only one step removed from the offense charged is per se reversible error, not subject to a harmless error analysis. See State v. Abreau, 363 So. 2d at 106…
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Ervin J. Lewis v. State, 211 So. 3d 279 (Fla. 1st DCA 2017)…8) (granting a new trial after conviction of capital sexual battery due to failure of trial judge to provide a jury instruction on simple battery even though no reasonable jury could have found the defendant guilty of simple battery); King v. State, 911 So. 2d 857 (Fla. 1st DCA 2005) (granting a new trial for defendant after jury conviction for battery on a law enforcement officer where the trial judge denied request for simple battery instruction after defendant admitted he knew the victim was a law enforcem…
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Pavao v. Hershone (M.D. Fla. 2021)…Taylor v. State, 740 So. 2d 89, 90 (Fla. 1st DCA 1999)). Additionally, as this Court noted in its December 16, 2020 Order (Doc. 38), “[s]imple battery is a necessarily lesser included offense of battery on a law enforcement officer.” King v. State, 911 So. 2d 857, 857 (Fla. 1st DCA 2005). Under Florida law, “[t]he elements of simple battery are: (1) actually and intentionally touching or striking another person; and (2) against the will of the other person.” Khianthalat v. State, 974 So. 2d 359, 361 (Fla. 2…
Authorities Cited
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- Brown v. State, 608 So. 2d 114 (Fla. 1st DCA 1992)
- Jones v. State, 714 So. 2d 627 (Fla. 1st DCA 1998)
- Williams v. State, 611 So. 2d 94 (Fla. 1st DCA 1992)