JOSEPH ALLEN HARRISON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Harrison challenges his conviction for attempted lewd and lascivious molestation, arguing the trial court erred by instructing the jury on attempt when the evidence proved either the completed crime or no crime at all. The court agreed, finding the attempt instruction improper under Florida Rule of Criminal Procedure 3.510(a), and reversed and remanded the conviction.
The trial court abused its discretion by giving the attempt instruction when no evidence supported attempt and only evidence proved either a completed crime or no crime. Because the jury found the defendant not guilty of the completed offense and guilty of the attempt, double jeopardy principles prohibit retrial on the completed offense.
[1] A trial court abuses its discretion by instructing a jury on an attempt charge when the evidence supports only a completed crime or no crime at all, over the defendant's…
[2] A jury instruction on an attempt charge is improper if there is no evidence to support the attempt and the only evidence proves a completed crime.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a trial court shall not instruct a jury on an attempt charge if there is no evidence to support the attempt and the only evidence proves a completed crime. If a trial court does so over a defendant's objection, the trial court abuses its discretion.”
Establishes the controlling legal standard from Florida Rule of Criminal Procedure 3.510(a) and case law that governs when attempt instructions are improper
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Join FLexlaw to unlock all legal intelligenceHarrison was charged with lewd or lascivious molestation of a child under 12. At trial, the only evidence presented proved either a completed offense …
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In this criminal appeal, the appellant challenges his conviction for attempted lewd and lascivious molestation on a person under 12 years of age by an offender over 18 years of age, in violation of section 800.04(5)(b), Florida Statutes (2007). The appellant argues that the trial court erred in giving the jury an attempt instruction because the evidence proved either a completed crime or no crime at all. After carefully reviewing the evidence, we agree and reverse and remand.
Florida Rule of Criminal Procedure 3.510(a) provides in pertinent part that a trial court shall not instruct a jury on an attempt charge if there is no evidence to support the attempt and the only evidence proves a completed crime. If a trial court does so over a defendant’s objection, the trial court abuses its discretion. Cf. Brock v. State, 954 So.2d 87, 88 (Fla. 1st DCA 2007) (“When a judge gives an instruction on a lesser-included offense over a defendant’s objection and no evidence has been presented to support that instruction, the judge abuses his or his discretion, and error occurs.”).
In the instant case, the appellant was charged with lewd or lascivious molesta*917tion. At trial, the only evidence presented proved either completed lewd or lascivious molestation or no crime at all. Nevertheless, over the appellant’s objection, the trial court gave an instruction on attempted lewd or lascivious molestation. This was error.
By finding the appellant guilty of attempted lewd and lascivious molestation, the jury necessarily found the appellant not guilty of the charged lewd and lascivious molestation. Accordingly, the prohibition against double jeopardy prohibits the State from retl’ying the appellant on that charge. See id. at 88-89. On remand, the State may only retry the appellant for battery in violation of section 784.03, Florida Statutes (2007), the only other lesser-included offense on which the jury was instructed. See id.
We REVERSE the appellant’s conviction for attempted lewd and lascivious molestation and REMAND for further proceedings consistent with this opinion.
HAWKES, C.J., and PADOVANO, J., concur.