JAMES RAY SWINDLE, 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.
Appellant Swindle was convicted of possession of a fire bomb and sentenced by a jury verdict. The appellate court reversed and remanded for a new trial because the trial judge gave two erroneous jury instructions: one that improperly included conspiracy to possess a fire bomb as an included offense, and another concerning organizational immunity that was not germane to the case.
The trial judge committed clear and reversible error by instructing on conspiracy to possess a fire bomb as an included offense when the information charged only the sole crime of possession of a fire bomb. Additionally, the instruction regarding organizational immunity was erroneous and prejudicial because it was not germane to the prosecution's theory or the defendant's defense. Such compounded mistakes constitute reversible error.
[1] A jury instruction on conspiracy is erroneous when the information charges only the substantive offense and not conspiracy.
[2] A jury instruction is erroneous and prejudicial if it is not germane to the theory of prosecution or a defense raised.
Previewing 2 of 3 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“since the single count information, in the case sub judice, charged appellant with the sole possession of the fire bomb, the only logical conclusion to be reached is that giving the conspiracy instruction was clearly erroneous.”
Establishes that the trial court cannot instruct on conspiracy as an included offense when the charge is only for possession of a fire bomb.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSwindle was charged by information with possession of a fire bomb with intent to willfully and maliciously use it to set fire to and burn a constructi…
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 Included Offense cases and more on FLexlaw
Appellant seeks review of a judgment and sentence entered against him following a jury verdict of guilty in response to a Bill of Information charging him with “Possession of a Fire Bomb,” as prohibited by F.S. § 806.111, F.S.A.
Appellant argues that his motion for new trial should have been granted pursuant to F.S. § 920.05, F.S.A.1 since the trial judge erroneously instructed the jury following closing arguments by counsel.' We agree.
The first instruction which was erroneous reads as follows:
“Included also in this offense of possession of a fire bomb is the offense of conspiracy to possess a fire bomb. The Court charges you that if two or more persons have agreed to combine or confederate to commit any felony, that they themselves shall be guilty of the felony and shall be punished as provided by law.”
*812In Kinchen v. State, Fla.App.1970, 235 So.2d 749, the majority held that conspiracy to commit robbery is not an offense included under the charge of robbery; therefore, since appellant had been brought to trial upon an information charging him with the sole crime of robbery, the trial judge could not properly adjudicate the defendant guilty of conspiracy to commit robbery.2 The adjudication and sentence were reversed with directions to discharge the appellant.
Therefore, since the single count information,3 in the case sub judice, charged appellant with the sole possession of the fire bomb, the only logical conclusion to be reached is that giving the conspiracy instruction was clearly erroneous.
Appellant further argues, and we agree, that the additional instruction, to-wit:
“I further charge you that no organization or union has the lawful authority to give any person immunity from prosecution for doing unlawful acts.”
was erroneous and prejudicial since it was not germane to the theory of the prosecution nor was it advanced as a defense by appellant.
Mistake compounded is reversible error; therefore the judgment and sentence are vacated and the cause is remanded for a new trial. Appellant’s other points on appeal now become moot.
Reversed.
PIERCE, C. J., and MANN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
-
State v. Wimberly, 498 So. 2d 929 (Fla. 1986)…23 So. 2d 612 (Fla. 1st DCA 1975), cert. denied, 336 So. 2d 108 (Fla.1976). Further, the court should not give instructions which are confusing, contradictory, or misleading. Finch v. State, 116 Fla. 437, 156 [*935] So. 489 (1934); Swindle v. State, 254 So. 2d 811 (Fla. 2d DCA 1971). It is not the province of the jury to determine what sentence will be imposed by selecting from a smorgasbord of lesser offenses. Juries in Florida are instructed that the sentence to be imposed in non-capital cases is exclusive…
-
Butler v. State, 493 So. 2d 451 (Fla. 1986)…v. State, 323 So. 2d 612 (Fla. 1st DCA 1975), cert. denied, 336 So. 2d 108 (1976). Further, the court should not give instructions which are confusing, contradictory, or misleading. Finch v. State, 116 Fla. 437, 156 So. 489 (1934); Swindle v. State, 254 So. 2d 811 (Fla. 2d DCA 1971). A jury instruction pertaining to justifiable use of force in one’s home given in a case in which the crime occurred in the victim’s home and the victim denied attempting to use force does not relate to the evidence received at tr…
-
Florentino Ramirez v. State, 371 So. 2d 1063 (Fla. 3d DCA 1979)…nts of this crime. King v. State, 104 So. 2d 730 (Fla.1958); § 777.04(3), Fla.Stat. (1977); 6 Fla. Jur.2d “Conspiracy” § 5 (1956). Conspiracy is a separate and distinct crime from the offense which is the object of the conspiracy. Swindle v. State, 254 So. 2d 811 (Fla. 2d DCA 1971); Sheldon v. State, 178 So. 2d 34 (Fla. 3d DCA 1965). Moreover, conspiracy is one step removed from an attempt to commit the offense which is the object of the conspiracy, and, thus, is two steps removed from the actual commission…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 130 Fla. 479 (Fla. 1938)
- Kinchen v. State, 235 So. 2d 749 (Fla. 3d DCA 1970)