ESTEBAN RODRIGUEZ, A/K/A STEVE RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Rodriguez was convicted of the felony offense of conducting a lottery (Bolita), but the trial court refused to instruct the jury on the lesser included misdemeanor offense of possession of lottery paraphernalia. The court reversed, holding that when evidence supports a lesser included offense, the jury must be instructed on it.
The trial court committed prejudicial error in refusing to instruct the jury on the lesser included offense of possession. When a defendant seeks a charge on a lesser offense and there is evidence from which the jury could find that the lesser offense was the only offense committed notwithstanding a prima facie showing of the highest offense, the jury must be instructed on the lesser offense.
[1] A trial court has a duty to instruct the jury on lesser included offenses when they exist.
[2] A lesser included offense exists when the accusatory pleading alleges all the elements of the lesser offense, and the evidence supports the allegation.
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Join FLexlaw to unlock all legal intelligence“when a defendant seeks a charge on a lesser offense which may or may not be included in the offense charged, if there is some evidence from which the jury could have found that the lesser offense was the only offense committed notwithstanding a prima facie showing of the highest offense, the charge need only "comprehend" the lesser offense to the extent that it is within the general scope of the charge made.”
The controlling legal standard from Anderson v. State establishing when a lesser included offense instruction must be given
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Join FLexlaw to unlock all legal intelligenceRodriguez and another person were charged with unlawfully aiding or assisting in setting up, promoting, or conducting a lottery drawing for money (Bol…
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In this appeal one of the questions raised by appellant Rodriguez was whether the trial Court committed reversible error in refusing to instruct the jury on possession of lottery paraphernalia, as requested by appellant. We hold that this was prejudicial error, and reverse.
Rodriguez was convicted of a felony under the second count of an information which charged that he and another
“ . . . did unlawfully aid or assist in the setting up, promoting or conducting of a lottery or a lottery drawing for money, commonly known as Bolita, Cuba, and/or Bond, a further description of which is to the County Solicitor unknown in violation of Section 849.09(1) (d), Florida Statutes, contrary to the *82form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.”
There was no specific language in the accusatory pleading alleging the commission of the misdemeanor of possession, condemned in F.S. § 849.09(1) (f) F.S.A. The evidence, however, was more than sufficient to support a charge of possession of lottery paraphernalia, but the State was relying on this evidence in addition to other evidence to establish the felony charged.
At the conclusion of the evidence, appellant orally requested an instruction on the lesser offense of possession, the Court having waived the requirement that the instruction be in writing. The Court refused to give the instruction as not being applicable.
The law announced in the recent case of Anderson v. State, Fla.App., 255 So.2d 550, opinion filed December 3, 1971 (not yet reported), controls the question presented here. This Court in Anderson reversed the lower Court and ordered a new trial, holding that when a defendant seeks a charge on a lesser offense which may or may not be included in the offense charged, if there is some evidence from which the jury could have found that the lesser offense was the only offense committed notwithstanding a prima facie showing of the highest offense, the charge need only “comprehend” the lesser offense to the extent that it is within the general scope of the charge made.
Inasmuch as we have determined that the judgment must be reversed and the case retried, it is unnecessary to consider the other questions presented by appellant.
The judgment appealed is reversed and the cause remanded for a new trial.
Reversed and remanded.
MANN and McNULTY, JJ., concur.
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State v. Rodriguez, 276 So. 2d 5 (Fla. 1973)…PER CURIAM. By petition for certiorari, we have for review a decision of the District Court of Appeal, Second District (257 So. 2d 81), which allegedly conflicts with prior decisions of this Court and of the District Courts of Appeal of the State on the same point of law. We have examined the decisions involved and determined that there is conflict and that we have jurisdiction pu…
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Rodriguez v. State, 283 So. 2d 146 (Fla. 2d DCA 1973)…PER CURIAM. This court’s prior opinion, 1972, 257 So. 2d 81, reversing the judgment against Rodriguez, was quashed by the Supreme Court. State v. Rodriguez, Fla.1973, 276 So. 2d 5. The Supreme Court remanded to us for consideration of other points on appeal not dealt with in our earlier opinion. A second rev…
Authorities Cited
- Anderson v. State, 255 So. 2d 550 (Fla. 2d DCA 1971)