JAMES HIGGS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Higgs appeals his convictions for fleeing to elude at high speed and other related driving offenses, arguing the trial court erred in refusing to instruct the jury on the permissive lesser included offense of reckless driving. The appellate court affirms, holding that although the instruction should have been given, the error was harmless because the jury was instructed on lesser included offenses closer to the charged offense and declined to convict on those alternatives.
The trial court erred in refusing to instruct the jury on reckless driving as a permissive lesser included offense because the pleadings and evidence supported the instruction. However, the error was harmless because the jury was instructed on lesser included offenses only one step removed from the charged offense (fleeing to elude with and without lights and siren), and the jury's rejection of those closer alternatives demonstrates it would not have convicted on the more distant reckless driving alternative.
[1] A request for a jury instruction is preserved for appellate review when the record clearly shows that defense counsel requested a specific instruction and the trial court…
[2] An instruction on a permissive lesser included offense must be given when the pleadings and evidence demonstrate that the lesser offense is included in the charged offens…
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Join FLexlaw to unlock all legal intelligence“An instruction on a permissive lesser included offense must be given when the pleadings and evidence demonstrate that the lesser offense is included in the charged offense.”
Establishes the legal standard for when jury instructions on lesser included offenses are required.
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Join FLexlaw to unlock all legal intelligenceJames Higgs was convicted of fleeing to elude at high speed with lights and siren activated, driving while license revoked, reckless driving, and driv…
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LaROSE, Judge.
James Higgs appeals his convictions for fleeing to elude at high speed with lights and siren activated (count one), driving while license revoked (count two), reckless driving (count three), and driving with an altered temporary tag (count four). The trial court sentenced Mr. Higgs to five years in prison, concurrent, on counts one and two and to time served on counts three and four. Mr. Higgs argues that the trial court erred in refusing to instruct the jury, on count one, on the permissive lesser included offense of reckless driving. We affirm.
The State argues that Mr. Higgs did not preserve the issue for review. According to the State, he abandoned his request for the instruction. The denial of a jury instruction request is preserved “where the record clearly show[s] that defense counsel requested a specific instruction and the trial court ‘clearly understood the request and just as clearly denied the request.’ ” Carpenter v. State, 785 So. 2d 1182, 1199 (Fla.2001) (quoting State v. Heathcoat, 442 So. 2d 955, 955-56 (Fla.1983)); Austin v. State, 406 So. 2d 1128, 1132 (Fla. 4th DCA 1981). Our record reflects that Mr. Higgs requested a reckless driving instruction for count one and the trial court unequivocally denied the request. Accordingly, the issue is preserved for our review.
Addressing the merits of Mr. Higgs’ claim, we note that
[a] permissive lesser included offense is an offense that may or may not be included in the offense charged depending on the pleadings and the evidence ....
An instruction on a permissive lesser included offense must be given when the pleadings and evidence demonstrate that the lesser offense is included in the charged offense.
Russ v. State, 612 So. 2d 688, 689 (Fla. 2d DCA 1993) (citing Amado v. State, 585 So. 2d 282 (Fla.1991)); see also Fla. R.Crim. P. 3.510(b).1 The pleadings and the evidence adduced at trial supported the requested instruction. Nevertheless, the trial court’s refusal to give the instruction does not compel reversal.
In addition to an instruction on the charged offense, see § 316.1935(3)(a), Fla. Stat. (1995), the trial court instructed the jury on the category one included lesser offenses of (1) fleeing to elude a law enforcement officer with lights and siren (§ 316.1935(2)) and (2) fleeing to elude a law enforcement officer (§ 316.1935(1)). See In re Standard Jury Instructions-Criminal Cases (99-1), 765 So. 2d 692, 704 (Fla.2000); Fla. Std. Jury Inst. (Crim.); Schedule of Lesser Included Offenses. Reckless driving is three steps removed from the charged offense; the trial court gave instructions on lesser included offenses just one step removed. Because the jury declined to exercise its pardon power by convicting Mr. Higgs of a violation of section 316.1935(2) or section 316.1935(1), the trial court’s refusal to give the requested instruction is harmless. See State v. Abreau, 363 So. 2d 1063, 1064 (Fla.1978); Fernandez v. State, 570 So. 2d 1008, 1011 (Fla. 2d DCA 1990); Sherrer v. State, 898 So. 2d 260, 261-62 (Fla. 1st DCA 2005).
Affirmed.
CANADY, J., and THREADGILL, EDWARD F., Senior Judge, concur. . Rule 3.510. On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
(b) any offense that as a matter of law is a necessarily included offense or a lesser in-eluded offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.
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Eliseo G. Saldana v. State, 980 So. 2d 1220 (Fla. 2d DCA 2008)…e final verdict form. Unlike Perley, we need not address fundamental error. Our review of the record reflects that Mr. Saldana’s counsel objected to, and consequently preserved for our review, the use of the general verdict form. See Higgs v. State, 948 So. 2d 1024, 1025 (Fla. 2d DCA 2007). Mr. Saldana is entitled to a new trial. Reversed and remanded. WHATLEY and WALLACE, JJ„ Concur. . An information is duplicitous when it joins two or more separate offenses, or alternative means of committing the same off…
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Wong v. State, 212 So. 3d 351 (Fla. 2017)…e record.”); see also Pieczynski v. State, 516 So. 2d 1048, 1050 (Fla. 3d DCA 1987) (citing Holley, 423 So. 2d 562). . See also Floyd v. State, 850 So. 2d 383, 400 (Fla. 2002); Franqui v. State, 804 So. 2d 1185, 1195-96 (Fla. 2001); Higgs v. State, 948 So. 2d 1024, 1025 (Fla. 2d DCA 2007); Arthur v. State, 717 So. 2d 193, 194 (Fla. 5th DCA 1998); Holland v. State, 634 So. 2d 813, 816 (Fla. 1st DCA 1994); Hicks v. State, 622 So. 2d 14, 17 (Fla. 5th DCA 1993); Hewitt v. State, 575 So. 2d 273, 274 (Fla. 4th DCA…
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Wong v. State, 184 So. 3d 1122 (Fla. 2d DCA 2015)…Fla.1994) (“[T]o preserve an objection, the party must object after the jury has been instructed, unless the party’s previous request for a specific jury instruction was denied.” (citing Sochor, 504 U.S. at 534, 112 S.Ct. 2114)); cf. Higgs v. State, 948 So. 2d 1024, 1025 (Fla. 2d DCA 2007) (dismissing the State’s assertion that the defendant abandoned his request for the jury instruction on the permissive lesser included offense and holding that the instruction issue was preserved for review because the “recor…
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
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Carpenter v. State, 785 So. 2d 1182 (Fla. 2001)
- Amado v. State, 585 So. 2d 282 (Fla. 1991)
- State v. Heathcoat, 442 So. 2d 955 (Fla. 1983)
- STANDARD JURY INSTRUCTIONS-CRIMINAL CASES (99-1), 765 So. 2d 692 (Fla. 2000)
- Elio Frank Fernandez, Jr. v. State, 570 So. 2d 1008 (Fla. 2d DCA 1990)
- Cowboy Sherrer v. State, 898 So. 2d 260 (Fla. 1st DCA 2005)
- Austin v. State, 406 So. 2d 1128 (Fla. 4th DCA 1981)
- Russ v. State, 612 So. 2d 688 (Fla. 2d DCA 1993)