XAVIER SPENCER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Xavier Spencer was charged with robbery but testified he did not participate in the crime. The jury initially returned a verdict finding him guilty of two lesser-included misdemeanors (petit theft and assault), but the trial court instructed the jury it could only convict on one offense, leading to a guilty verdict for robbery on the second ballot. The court reversed, holding that the jury has the inherent power to acquit of a greater offense and convict of lesser ones, and the trial court's instruction violated this principle.
The trial court erred by rejecting the initial verdict and giving an incorrect instruction that the jury could only convict on one offense. By doing so, the court violated the jury's inherent power to acquit a defendant of a greater offense and convict him of lesser offenses. Spencer is entitled to a new trial.
[1] A trial court errs by rejecting a jury's initial verdict and instructing the jury that it can only convict of one offense when the jury has indicated a desire to convict…
[2] A jury possesses the inherent power to acquit a defendant of a greater offense and convict of a lesser offense, even when the evidence supports conviction of the greater…
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 jury has inherent power 'to acquit a defendant of a greater offense and convict him or her of a lesser one even though the evidence supports both crimes.'”
Establishes the fundamental principle of jury authority that was violated by the trial court's instruction limiting the jury to selecting only one verdict option.
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Join FLexlaw to unlock all legal intelligenceSpencer was charged with principal in the first degree to robbery, a second-degree felony. He testified at trial that he witnessed but did not partici…
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The state charged Xavier Spencer with principal in the first degree to robbery, a second-degree felony.1 Spencer testified at trial that he witnessed but did not participate in, aid or abet the crime. The trial court instructed the jury on robbery and the necessarily and permissive lesser-included misdemeanor offenses of petit theft and assault, respectively.2 The verdict form gave the jury the following four options: guilty of robbery as charged; guilty of the lesser-included offense of petit theft; guilty of the lesser-included offense of assault; not guilty. The court explained to the jury, ‘You may find the defendant guilty as charged in the information, or guilty of such lesser included crime as the evidence may justify!,] or not guilty.”
When the jury returned from deliberating, it presented to the court a verdict form on which two of the four choices were marked: guilty of petit theft and guilty of assault.3 The jury confirmed its verdict was unanimous. However, the court sent the jury back to deliberate further, telling them “you’ve got four choices and you can only pick one of those.... [J]ust mark out the one that you decided not on.” When the jury returned the second time, its unanimous verdict was guilty of robbery as charged. Spencer moved for a new trial arguing that the court incorrectly instructed the jury it could only convict him of one offense, and that the error caused the jury to convict him of robbery instead of petit theft and assault. The court denied the motion for new trial reasoning that even if the instruction was incorrect, which it was,4 the jury’s second verdict was consis*903tent with the evidence and with Spencer’s theory of defense.
We conclude the trial court should have granted Spencer a new trial. By rejecting 5 the initial verdict and giving an incorrect or, at least, ambiguous instruction, the court caused the jury to change its verdict. Even if the evidence supports a conviction for robbery, the court effectively vetoed the jury’s decision to exercise its pardon power by acquitting Spencer of robbery and convicting him, instead, of two misdemeanors. See Sanders v. State, 946 So.2d 953, 957 (Fla.2006) (explaining that a jury has inherent power “to acquit a defendant of a greater offense and convict him or her of a lesser one even though the evidence supports both crimes.”). This was error, and Spencer is entitled to a new trial.
REVERSED and REMANDED.
WETHERELL, MARSTILLER, and RAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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In re Standard Jury Instructions IN Crim. Cases-Report NO. 2012-09, 122 So. 3d 263 (Fla. 2013)…e-S-.l)*- Lesser Included Offenses [*286] [*287] Comments For the crime of robbery, a jury can convict of two lesser-included ' offenses such as 1) theft and assault or 2) theft and resisting a merchant in appropriate cases. See Spencer v. State, 71 So. 3d 901 (Fla. 1st DCA 2011), and Stuckey v. State, 972 So. 2d 918 (Fla. 5th DCA 2007). This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1989 [543 So. 2d 1205], 1995 [665 So. 2d 212], and 2008 [982 So. 2d 1160], and 2013. 15.2 CAR…1 / 2
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Gordon v. State, 219 So. 3d 189 (Fla. 3d DCA 2017)…t decision as well. . Thus, the only possible legal premise to justify giving the requested compound offense instruction and verdict form in this case would be that of a jury pardon. In support of this proposition, Gordon cites to Spencer v. State, 71 So. 3d 901 (Fla. 1st DCA 2011). We respectfully disagree with our sister court’s conclusion in Spencer, and conclude that the concept of jury pardon is not the underpinning for a jury’s ability to consider verdicts of guilty on two lesser-included component of…
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In re STANDARD JURY INSTRUCTIONS IN CRIM. CASES-REPORT 2018-06., 260 So. 3d 941 (Fla. 2018)…ording the First and Fifth DCAs, upon request, the judge must instruct that the ajury can convict a defendant of two lesser-included offenses such as 1) theft and assault or 2) theft and resisting a merchantin appropriate cases.See Spencer v. State, 71 So. 3d 901 (Fla. 1stst DCA 2011), andStuckey v. State, 972 So. 2d 918 (Fla. 5th th DCA 2007).See also Gian-Grasso v. State, 899 So. 2d 392 (Fla. 4th DCA 2005)(holding that a defendant is entitled to have a jury consider convicting of the two separate component…1 / 3
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
- Bell v. State, 437 So. 2d 1057 (Fla. 1983)
- Sanders v. State, 946 So. 2d 953 (Fla. 2006)
- Sullivan v. State, 972 So. 2d 918 (Fla. 2d DCA 2007)
- Stuckey v. State, 972 So. 2d 918 (Fla. 5th DCA 2007)