JOHNNY LEE WARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnny Lee Ward was convicted of breaking and entering a dwelling with intent to commit a misdemeanor after the trial court reduced the original felony charge. The appellate court reversed because the trial court erroneously refused to instruct the jury on the lesser included offense of attempt, which Florida law required.
The trial court erred in refusing to instruct the jury on attempt as a lesser included offense. Although the evidence supported conviction of the greater crime, Florida law mandates that courts charge on attempt to commit a crime when such attempt is also an offense. The omission was harmful error because it denied the jury the opportunity to find guilt of a lesser misdemeanor offense.
[1] A court must instruct the jury on an attempt to commit a crime if the attempt is also an offense, even if the evidence supports the commission of the greater crime.
[2] A jury must be instructed on an attempt to commit a crime if such attempt is also an offense, regardless of the defense relied upon by the defendant.
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“the mandate contained in Rule 3.510, FRCrP, 33 F.S.A., is that the court must charge on an attempt to commit a crime if such attempt is also an offense. Anomalous as it seems, it makes no difference that the proof established the greater crime charged”
Establishes that the trial court was required by rule to instruct on attempt regardless of whether the greater crime was proven
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Join FLexlaw to unlock all legal intelligenceWard was originally charged with breaking and entering a dwelling with intent to commit a felony. At the close of the state's case, the court granted …
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DOWNEY, Judge.
Appellant was charged with breaking and entering a dwelling with intent to commit a felony. At the close of the state’s case the appellant moved the court to reduce the charge to breaking and entering a dwelling with intent to commit a misdemeanor. The court granted the motion. Thereafter the jury found the appellant guilty of breaking and entering a dwelling with intent to commit a misdemeanor. The sole question on appeal is whether it was harmful error for the court to refuse appellant’s request, made during the charge conference, for the court to instruct the jury that it might find appellant guilty of an attempt to break and enter a dwelling with intent to commit a misdemeanor. The court based its refusal to give the requested instruction on attempt on the ground that the evidence showed appellant either broke and entered or entered without breaking or did nothing, since the defense appellant relied on was alibi. Under the evidence in this case one can not argue with the trial judge’s logic that appellant either broke and entered, entered without breaking, or did nothing.
However, logical or not, the mandate contained in Rule 3.510, FRCrP, 33 F.S.A., is that the court must charge on an attempt to commit a crime if such attempt is also an offense. Anomalous as it seems, it makes no difference that the proof established the greater crime charged, Brown v. State, Fla.1968, 206 So. 2d 377, Lewis v. State, Fla.App. 1972, 269 So. 2d 692, or that failure to reach fruition is of the essence of an attempt to commit a crime. So until the rule is changed by the court of last resort, like it or not, we are all obliged to follow it.
Next we consider whether the harmless error statute, § 924.33, F.S.1971, F.S.A., is applicable here. The main charge upon which the case went to the jury was breaking and entering a dwelling with intent to commit a misdemeanor, a third-degree felony. See § 810.05 F.S. 1971, F.S.A.
Section 776.04, F.S.1971, F. S.A., provides that whoever attempts to commit an offense prohibited by law, which offense is a third-degree felony, shall be guilty of a misdemeanor.
Thus, if the jury had been properly instructed on attempts, it could have found appellant guilty of a misdemeanor. Without such an instruction the jury was not afforded that opportunity, and it can hardly be said such an omission, from appellant’s standpoint, is harmless. Although there was ample evidence upon which the jury could properly have returned the verdict it did return, in view of the fo.regoing observations, and after an examination of the appeal papers, we conclude the error was harmful. Cf. Birge v. State, Fla.1957, 92 So. 2d 819.
The judgment and sentence is reversed and the cause remanded for a new trial.
WALDEN and MAGER, JJ., concur.
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Dobbert v. State, 328 So. 2d 433 (Fla. 1976)…arge the jury in this regard.” . 199 So. 2d 100 (Fla.1967). . 206 So. 2d 377 (Fla.1968). . 268 So. 2d 901 (Fla.1972). . 273 So. 2d 759 (Fla.1973). . 269 So. 2d 692 (Fla.App.1972). . 275 So. 2d 264 (Fla.App.1973), cert, den., 279 So. 2d 308. . 287 So. 2d 138 (FIa.App.1973) ; see also Clements v. State, 284 So. 2d 700 (Fla.App. 1973), cert. den., 294 So. 2d 654. . 291 So. 2d 617 (Fla.App.1974). . 297 So. 2d 617 (Fla.App.1974). . 299 So. 2d 126 (Fla.App.1974). . Section 924.33, Florida Statutes.…
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Lightfoot v. State, 331 So. 2d 388 (Fla. 2d DCA 1976)…ion of whether the error in refusing to give the requested charge could be harmless error, the fact that the conviction was reversed necessarily indicates that the court did not believe this error was harmless. Cf. Ward v. State, Fla.App. 4th, 1973, 287 So. 2d 138. In Terry, as in the instant case, the rule of DeLaine v. State, Fla.1972, 262 So. 2d 655, holding harmless the failure to give an instruction “two steps removed” was not involved. While Terry involved lesser included offenses rather than attempts,…
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Dane Craig Garrison v. State, 340 So. 2d 1171 (Fla. 4th DCA 1976)…State, 269 So. 2d 692 (Fla. 4th DCA 1972), we held that an attempt to receive stolen property was a lesser included offense of receiving stolen property and failure to give a requested instruction on attempt was reversible error. In Ward v. State, 287 So. 2d 138 (Fla. 4th DCA 1973), we held the trial court’s refusal to give a requested charge on attempt to break and enter a dwelling with intent to commit a misdemeanor to be reversible error. The harmless error statute was found not to be applicable where th…
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
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Birge v. State, 92 So. 2d 819 (Fla. 1957)
- Lewis v. State, 269 So. 2d 692 (Fla. 4th DCA 1972)