ALVIN THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that the failure to instruct on a lesser-included offense was not preserved for review, but the sentence must be vacated because the trial court failed to renew the offer of appointed counsel at sentencing.
Appellant was convicted of discharging a firearm within 1000 feet of a person. He appealed, arguing the trial court erred by not instructing the jury …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Preservation Of Error For Appeal cases and more on FLexlaw
PER CURIAM.
This is an appeal of a judgment and sentence for discharging a firearm from a vehicle within 1000 feet of a person, in violation of section 790.15(2), Florida Statutes (2005). Appellant contends the trial court committed reversible error in two respects: (1) by failing to instruct the jury on a lesser-included offense, and (2) by sentencing him without renewing the offer of appointed counsel and without securing a waiver of counsel.
Appellant did not request an instruction on criminal mischief as a lesser-included offense and did not object to the instructions as given. Accordingly, the trial court’s failure to instruct on a lesser-included offense is not preserved for review. McKinney v. State, 579 So. 2d 80 (Fla.1991).
Florida Rule of Criminal Procedure 3.111(d)(5) clearly mandates that the trial court renew its offer to appoint counsel at the sentencing stage of the trial. Because the trial court did not inquire as to whether the appellant desired counsel at the sentencing hearing, we are compelled to vacate the sentence imposed and remand this cause to the trial court for resentencing, prior to which an offer of assistance of counsel shall be made by the trial judge. Billions v. State, 399 So. 2d 1086, 1087 (Fla. 1st DCA 1981).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for proceedings consistent with this opinion.
BARFIELD, WOLF, and HAWKES, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Barrientos v. State, 1 So. 3d 1209 (Fla. 2d DCA 2009)…ct the jury on the applicable lesser included offenses in this case would not have constituted fundamental error. See McKinney v. State, 579 So. 2d 80, 83-84 (Fla.1991); Crawford v. State, 606 So. 2d 1204, 1205 (Fla. 2d DCA 1992); Thompson v. State, 969 So. 2d 1223, 1224 (Fla. 1st DCA 2007). It follows that the delivery of a truncated version of the instructions on the lesser included offenses likewise could not constitute fundamental error. That said, we disapprove the trial court’s approach to the instructi…
-
Burns v. State, 170 So. 3d 90 (Fla. 1st DCA 2015)…murder without a firearm because "[wjhen there is no timely request made by the defendant, a trial court’s failure to instruct on a necessarily-lesser included offense in a non-capital case does not constitute fundamental error”); Thompson v. State, 969 So. 2d 1223, 1224 (Fla. 1st DCA 2007) (holding the trial court’s failure to instruct on a lesser-included offense was not preserved for review when the defendant did not request such an instruction and did not object to the instructions as given); Wilson v. Sta…
Authorities Cited
- Boris McKINNEY v. State, 579 So. 2d 80 (Fla. 1991)
- Billions v. State, 399 So. 2d 1086 (Fla. 1st DCA 1981)