RICHARD L. BLACK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Richard Black appeals his life sentence for robbery, challenging the trial court's failure to instruct the jury on lesser included offenses. The court affirms, holding that defendants may waive the right to such jury instructions and finding any error harmless given that the sole issue at trial was identity, not whether a robbery occurred.
A defendant may waive his right to have the jury charged on lesser and included offenses, just as he may waive the right to trial by jury or enter a guilty plea. Any failure to charge on lesser offenses was harmless error because the only disputed issue was identity, and the State presented competent evidence that the jury could and did believe established Black's guilt.
[1] A defendant may waive the right to have the jury charged as to lesser and included offenses.
[2] A trial court's failure to charge the jury on lesser included offenses can be harmless error.
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Join FLexlaw to unlock all legal intelligence“The rule requiring the trial court to charge the jury as to lesser and included offenses is of benefit, not only to the defendant but also, in some situations, may well prove beneficial to the State.”
Establishes the purpose and scope of the lesser-included-offense instruction doctrine
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Join FLexlaw to unlock all legal intelligenceBlack was convicted of robbery by jury verdict and sentenced to life imprisonment. The victim was robbed of articles of value. At trial, defense couns…
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The appellant seeks reversal of a life sentence imposed against him, based upon a jury verdict finding him to be guilty of the crime of robbery.
The only point on appeal that merits discussion relates to the failure of the trial court to charge the jury as to lesser and included offenses. Appellant relies upon Miles v. State, Fla.App.1972, 258 So.2d 333. We adhere to the ruling in the cited case. The rule requiring the trial court to charge the jury as to lesser and included offenses is of benefit, not only to the defendant but also, in some situations, may well prove beneficial to the State.
There are many basic rights that are secured to every defendant. He has the right to trial by jury. However, he may waive such right and submit the issues for determination by the judge. He may also waive such right and enter a plea of guilty to the charge. We hold, further, that he may waive his right to have the jury charged as to lesser and included offenses.
The record reveals that defense counsel, in his opening statement to the jury, stated:
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“There is one issue in this case, Ladies and Gentlemen, and one issue only. There’s no question that a crime was committed in this case. The only issue is that who perpetrated the crime.” [emphasis supplied]
* * * * * *
The issue was thus drawn. The evidence is abundant that the alleged victim was robbed of articles of value. The defendant’s sole contention was that the State had failed to prove that he was the person who committed the act of robbery. The State produced competent evidence which the jury could believe, and by the verdict proclaimed the jury did believe that it was the defendant, and no one else, who committed this felony.
The error here complained of [if any there be] at the most was and is harmless. State v. Wilson, Fla.1973, 276 So.2d 45 (opinion filed April 11, 1973), and cases cited therein.
*911The appellant having failed to demonstrate reversible error, the judgment and sentence appealed from is affirmed.
Affirmed.
(dissenting).
In my opinion, the duty of the trial judge to instruct upon necessarily included offenses is not waived by a remark of counsel in his opening statement. I would reverse for a new trial. See Hand v. State, Fla.1967, 199 So.2d 100; Miles v. State, Fla.App.1972, 258 So.2d 333.
PEARSON, Judge
(dissenting).
In my opinion, the duty of the trial judge to instruct upon necessarily included offenses is not waived by a remark of counsel in his opening statement. I would reverse for a new trial. See Hand v. State, Fla.1967, 199 So. 2d 100; Miles v. State, Fla.App.1972, 258 So. 2d 333.
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Clements v. State, 284 So. 2d 700 (Fla. 3d DCA 1973)…truction or an objection to a failure to give an instruction is a requirement to raising error on appeal, and we followed Florida Appellate Rule 6.7(g), 32 F.S.A. Alford v. State, Fla.App.1973, 280 So. 2d 479; see also, Black v. State, Fla.App.1973, 279 So. 2d 909. Therefore, we have concluded that no reversible error has been demonstrated, and for the reasons stated, the judgment and sentence appealed is affirmed. Affirmed.…
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Randall v. State, 346 So. 2d 1233 (Fla. 3d DCA 1977)…defense, and the only question to be determined by the jurors was the identity of the perpetrator of the crime. As a matter of trial strategy, the defendant could waive the charge on lesser included offenses in such a situation. See: Black v. State, 279 So. 2d 909 (Fla.3rd D.C.A. 1973). There is also a contention that more than one sentence could not be imposed under the circumstances of the alleged single transaction. This is without [*1235] merit in the instant case. See: Johnson v. State, 338 So. 2d 556 (F…
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Colon v. State, 283 So. 2d 127 (Fla. 4th DCA 1973)…PER CURIAM. Defendant contends (and the State concedes) that the offenses charged under Counts 1 and 2 were facets or phases of the same criminal transaction for which a single sentence should have been imposed. Moody v. State, Fla.App.1973, 279 So. 2d 909; Lietch v. State, Fla.App.1971, 248 So. 2d 203. Accordingly, defendant’s convictions are affirmed but sentences on Counts 1 and 2 are vacated and the cause remanded with directions that defendant be resentenced in accordance with this opinion. OWEN…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wilson, 276 So. 2d 45 (Fla. 1973)
- State v. Cole, 199 So. 2d 100 (Fla. 1967)
- Hand v. State, 199 So. 2d 100 (Fla. 1967)
- Miles v. State, 258 So. 2d 333 (Fla. 3d DCA 1972)