CHARLIE MILES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE; JERRY ROBERT WILLIAMS, APPELLANT, V. THE STATE OF FLORIDA, APPELLEE
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Charlie Miles and Jerry Robert Williams appealed their robbery convictions, asserting multiple points for reversal. The Florida District Court of Appeal found reversible error in the trial court's refusal to instruct the jury on lesser included offenses of attempted robbery and petit larceny, requiring reversal and a new trial.
The trial court's refusal to give requested jury instructions on lesser included offenses is reversible error. Under Florida law, since larceny is a necessarily included element of robbery and attempted robbery is a lesser included offense, the court must instruct the jury on these lesser offenses when requested, regardless of whether the evidence might satisfy the trial judge that the more serious offense was committed.
[1] A court must instruct the jury on necessarily included lesser offenses when properly requested by the defendant.
[2] Robbery necessarily includes larceny as an essential element.
Previewing 2 of 5 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“For example, in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny. * * * It is legally impossible to prove a robbery without also proving a larceny.”
Establishes that larceny is a necessarily included element of robbery, requiring jury instruction on the lesser offense
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Join FLexlaw to unlock all legal intelligenceDefendants were convicted of robbery for allegedly taking $80.00 at gunpoint. During trial, defendants properly requested jury instructions on the les…
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Defendants’ appeals from their convictions for the crime of robbery have been consolidated. The amount allegedly taken at gun point was $80.00. They have assigned several points for reversal and we find reversible error in the court’s failure to instruct on the lesser included offenses of robbery.
Defendants properly requested that the jury be charged on the “lesser included offenses of attempted robbery and petit larceny.” The court denied these motions. In Brown v. State, Fla.1968, 206 So.2d 377, the Supreme Court was concerned with a robbery in the amount of $68.00. In reversing and remanding for a new trial because of the failure to charge the jury on the larceny instruction requested by Brown, the late Justice Thornal said:
“For example, in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny. * * * It is legally impossible to prove a robbery without also proving a larceny. In such a situation, § 919.16, requires the instruction on the lesser offense, even though the proofs might satisfy the trial judge that the more serious offense was committed. This is so because under the quoted statute it is not within his province to make this decision. Section 919.16, grants to the jury the discretion to convict of a necessarily included offense. * * * ” [Citations omitted]
The state notes that Brown was based on Florida Statutes 919.14 and 919.16, F.S.A., which were repealed as of January 1, 1971 and that Rule 1.510 CrPR, 33 F.S.A., now controls. It provides:
“Upon an indictment, information or affidavit upon which the defendant is to be tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The Court shall charge the jury in this regard.”
We think the state suggests a distinction without a difference insofar as the repeal of the statutes are concerned. Under Brown, supra, the court was required to give the requested charge on larceny and under Rule 1.510 CrPR the requested charge on an attempt should have been given.
The state suggests that the failure to give such charges was harmless error. It cites Howard v. State, Fla.App.1970, 239 So.2d 83 and Richardson v. State, Fla. 1971, 246 So.2d 771 in support of this position. We have examined these authorities and they were not concerned with a failure to give requested charges on “lesser included offenses”. We find them inapplicable. The refusal to give a requested charge of larceny in a robbery case is not “harmless error”. Hand v. State, Fla.1967, 199 So.2d 100.
We have also examined two recent opinions on this point. Anderson v. State, Fla.App.1971, 255 So.2d 550; and DeLaine *335v. State, Fla.1971, opinion #67-358, filed November 10, 1971. We do not believe they compel a different conclusion.
In view of our reversal on this point, we see no need to discuss or decide any of the other points which defendants raise for reversal.
The final judgments herein appealed are reversed and the cause remanded for a new trial.
It is so ordered.
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Lomax v. State, 345 So. 2d 719 (Fla. 1977)…2 So. 2d 650, conflicts with State v. Terry, 336 So. 2d 65 (Fla.1976); Lightfoot v. State, 331 So. 2d 388 (Fla. 2d DCA 1976); Bracy v. State, 299 So. 2d 126 (Fla. 4th DCA 1974); Lewis v. State, 269 So. 2d 692 (Fla. 4th DCA 1972); and Miles v. State, 258 So. 2d 333 (Fla. 3d DCA 1972). According to the District Court opinion, petitioner Lomax robbed a motel clerk at gunpoint and at the time of his arrest was carrying a paper bag full of cash and a suitcase containing a pistol. At petitioner’s trial for robbery…
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Mathis v. State, 348 So. 2d 1221 (Fla. 3d DCA 1977)…rges that the trial court erred in refusing to instruct the jury on attempted possession of a short-barreled shotgun as a lesser included offense, in violation of Fla.R.Crim.P. 3,510, citing Brown v. State, 206 So. 2d 377 (Fla.1968); Miles v, State, 258 So. 2d 333 (Fla. 3rd D.C.A. 1972); Clark v. State, 301 So. 2d 456 (Fla. 3rd D.C.A. 1974); State v. Terry, 336 So. 2d 65 (Fla.1976). The defendant was given five years for possession of a short-barreled shotgun, to run concurrently with the other sentences, Th…
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Stevens v. State, 351 So. 2d 1077 (Fla. 3d DCA 1977)…a neutral and mechanical manner.” We agree, and find that the trial judge erred in failing to instruct the jury on the lesser included offenses of robbery as requested by Cook’s counsel. See Hand v. State, 199 So. 2d 100 (Fla.1967); Miles v. State, 258 So. 2d 333 (Fla.3d DCA 1972); State v. Terry, 336 So. 2d 65 (Fla.1976). Therefore, we reverse Cook’s conviction and sentence on the robbery count, and remand to the trial court for a new trial on that count. The remaining points raised by Cook in his brief an…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- State v. Cole, 199 So. 2d 100 (Fla. 1967)
- Hand v. State, 199 So. 2d 100 (Fla. 1967)
- Howard v. State, 239 So. 2d 83 (Fla. 1st DCA 1970)
- Anderson v. State, 255 So. 2d 550 (Fla. 2d DCA 1971)