LARRY WAYNE BRYANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Wayne Bryant was convicted of battery on a person 65 years or older, but the trial court failed to instruct the jury on the lesser-included offense of simple battery despite defense counsel's request. The appellate court reversed the conviction, holding that failure to instruct on a category one lesser-included offense is per se reversible error not subject to harmless error analysis.
The trial court erred by failing to instruct the jury on simple battery, a category one lesser-included offense. Failure to give a requested instruction on a necessarily lesser-included offense is per se reversible error regardless of the evidence supporting conviction for the greater offense, and such error is not subject to harmless error analysis.
[1] Failure to instruct the jury on a necessarily lesser-included offense is per se reversible error.
[2] The jury's right to exercise its pardon power applies regardless of the degree of proof or record evidence supporting conviction for the greater offense.
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Join FLexlaw to unlock all legal intelligence“failure to give a requested jury instruction on a necessarily lesser-included offense is per se reversible error”
Establishes the fundamental rule that applies to Bryant's case regardless of evidentiary strength
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Join FLexlaw to unlock all legal intelligenceOn May 29, 2004, Bryant was involved in a series of altercations with a 65-year-old woman while both were guests at a beach motel in Pinellas County. …
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CASANUEVA, Judge.
Larry Wayne Bryant appeals from his conviction for battery on a person sixty-five years of age or older. He alleges that the trial court erred by failing to instruct the jury on the lesser-included offense of battery. We agree and reverse Mr. Bryant’s conviction and remand for a new trial.
The facts of this case are not in dispute.
On May 29, 2004, Mr. Bryant was involved in a series of altercations with a sixty-five-year-old woman while both parties were guests at a beach motel in Pinellas County. During the jury trial charge conference, defense counsel requested an instruction on the lesser-included offense of simple battery, but the trial court denied that request. Defense counsel posed no objection to the court’s denial. Before the jury retired to deliberate, the court inquired whether either the State or the defense objected to the instructions as given, and defense counsel stated that he “re-urged” all the objections he had previously made.
The jury found Mr. Bryant guilty of the charge of battery on a person sixty-five years of age or older, and Mr. Bryant was sentenced to 27.3 months’ imprisonment. The issue on appeal is whether the trial court’s failure to instruct the jury on the lesser-included offense of simple battery constitutes reversible error. Battery is a category one lesser-included offense when the offense charged is battery on a person sixty-five years of age or older. Fla. Std. Jury Instr. (Crim.) 8.16 (1997).
According to State v. Abreau, 363 So. 2d 1063, 1064 (Fla.1978), failure to give a requested jury instruction on a necessarily lesser-included offense is per se reversible error. This principle is prefaced on the jury’s right to exercise its “pardon power” and applies regardless of the degree of proof or record evidence supporting conviction for the greater offense. State v. Wimberly, 498 So. 2d 929, 932 (Fla.1986).
Therefore, regardless of the fact that the age of the victim was not in dispute in this case, the trial court erred by failing to instruct the jury on simple battery.
The State argues that even if the trial court did err, such error was harmless because the jury had the opportunity to exercise its pardon power by acquitting Mr. Bryant. However, this court has specifically held that failure to instruct on a category one lesser-included offense is not subject to harmless error analysis. Boland v. State, 893 So. 2d 683, 686 (Fla. 2d DCA 2005) (citing Wimberly, 498 So. 2d at 932). This court has also noted that while it would prefer to be able to find such error harmless, Wimberly controls and therefore failure to instruct on a lesser-included offense mandates a reversal of the conviction and remand for a new trial. Wyche v. State, 573 So. 2d 953, 955 (Fla. 2d DCA 1991), quashed on other grounds, 619 So. 2d 231 (Fla.1993).
The State also argues that, even if the trial court did err in instructing the jury, the issue was not properly preserved for appeal because defense counsel failed to object to the instructions as given. While objections with regard to jury instructions are subject to the contemporaneous objection rule, State v. Delva, 575 So. 2d 643, 644-45 (Fla.1991), the objectives of this rule are satisfied “when the record shows clearly and unambiguously that a request was made for a specific instruction and that the trial court clearly understood the request and just as clearly denied the request.” State v. Heathcoat, 442 So. 2d 955, 956 (Fla.1983).
This court, as well as other Florida courts, has repeatedly applied this rule to hold that the issue of failure to instruct on a lesser-included offense was properly preserved once the instruction was requested, regardless of counsel’s failure to object either after the request was denied or after the instructions were given. See, e.g., Flint v. State, 463 So. 2d 554, 556 (Fla. 2d DCA 1985).
In this case, defense counsel properly preserved the issue for appeal by requesting an instruction on the lesser-included offense of battery despite the fact that counsel arguably did not specifically protest the trial court’s denial of that request.
Therefore, we reverse Mr. Bryant’s conviction for battery on a person sixty-five years of age or older and remand this matter for a new trial.
FULMER, C.J., and WALLACE, J., Concur.
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Citator
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State v. Floyd, 186 So. 3d 1013 (Fla. 2016)…there is the ability for both parties to engage in a dialogue about properly adjusting instructions that may not fully satisfy the demands of the individual situation. See, e.g., Outlaw v. State, 82 Fla. 68, 89 So. 342, 343 (1921); Bryant v. State, 932 So. 2d 408, 409-10 (Fla. 2d DCA 2006); Gibbs v. State, 789 So. 2d 443, 444-45 (Fla. 4th DCA 2001). Floyd’s failure to object or raise concerns belies his contention that the instructions were confusing, misleading, or contradictory. A failure to raise a conce…
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Wong v. State, 212 So. 3d 351 (Fla. 2017)…d unambiguously that a request was made for a specific instruction [*358] and that the trial court clearly understood the request and just as clearly denied the request.’ ” Wong, 184 So. 3d at 1124 (alterations in oxiginal) (quoting Bryant v. State, 932 So. 2d 408, 410 (Fla. 2d DCA 2006)). However, in application, the decision below departed from that standard by imposing a higher standard. Specifically, the district court held that the issue was not preserved because the trial court failed to make an explici…
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Wong v. State, 184 So. 3d 1122 (Fla. 2d DCA 2015)…se counsel properly preserved the issue for appeal by requesting an instruction on the lesser-ineluded offense of battery despite the fact that counsel arguably did not specifically protest the trial court’s denial of that request. Bryant v. State, 932 So. 2d 408, 410 (Fla. 2d DCA 2006); see also Truett, 105 So. 3d at 660 (rejecting the State’s argument that defense counsel failed to preserve his request for an instruction on the defense of alibi because he did not object further after the trial judge explai…1 / 2
Previewing 3 of 5 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)
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)
- State v. Wimberly, 498 So. 2d 929 (Fla. 1986)
- August Urbanek v. The 18TH Hole Inverrary Condo. Ass'n, Inc., 619 So. 2d 231 (Fla. 1993)
- State v. Heathcoat, 442 So. 2d 955 (Fla. 1983)
- Boland v. State, 893 So. 2d 683 (Fla. 2d DCA 2005)
- Flint v. State, 463 So. 2d 554 (Fla. 2d DCA 1985)
- Renetha C. Wyche v. State, 573 So. 2d 953 (Fla. 2d DCA 1991)