WILLIE D. SETTLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Settle appealed his conviction for robbery, arguing the trial judge erred by failing to instruct the jury on penalties for lesser included offenses. The Florida appellate court affirmed the conviction, holding that judges need only instruct on the penalty for the charged offense, not lesser included offenses, and that any trial errors were harmless in light of overwhelming evidence of guilt.
The trial judge was not obligated to instruct the jury on penalties for lesser included offenses under Florida Rule 3.390(a). Any trial errors—including the questionable line-up procedure and restrictive cross-examination—were harmless beyond a reasonable doubt in light of the overwhelming evidence of guilt.
[1] A trial court is obligated to instruct the jury on the penalty for the offense charged, but not for lesser included offenses.
[2] A trial court may err by narrowly circumscribing a defendant's cross-examination of state witnesses.
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 trial judge is not obligated by Rule 3.390(a) to inform the jury of the punishment for each of the offenses other than 'the offense charged' in the information although the defendant may be convicted on one of those lesser offenses.”
Establishes that trial courts need only instruct on penalties for the primary charged offense, not lesser included offenses, rejecting appellant's main argument.
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Join FLexlaw to unlock all legal intelligenceSettle was charged with robbery. The victim was unable to identify Settle in a police line-up, but police then paraded Settle past the witness on the …
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[*512] MANN, Chief Judge.
Appellant’s counsel argues ingeniously but fallaciously that the trial judge erred in failing to charge the jury on the penalty fixed by law for offenses included within the offense charged. Rule 3.390(a), 33 F.S.A., provides that:
“The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.”
Rule 3.510 provides:
“Upon an indictment ' or information 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.”
The trial judge is not obligated by Rule 3.-390(a) to inform the jury of the punishment for each of the offenses other than “the offense charged” in the information although the defendant may be convicted on one of those lesser offenses.
The defendant’s cross examination of state witnesses should not have been so narrowly circumscribed by the trial judge when the effort was made to obtain a description of the area searched by the investigating officer. Coco v. State, Fla.1953, 62 So. 2d 892.
There is also an error in police procedure which is cured in an adequate, though not exemplary, manner. The victim of the robbery was unable to identify Settle in a line-up. Immediately thereafter police paraded Settle and possibly other participants past the witness on their way back to the cell block. Whether this was done in deliberate violation of sound principles governing identification procedures or out of ignorance we cannot determine. We need not determine it because at the trial the taint was recognized and overcome by evidence sufficient to show that the in-court identification was predicated upon the witness’ observation at the scene of the crime and not influenced by any later impropriety on the part of the deputy sheriff. Wade v. U. S., 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Additionally, Settle was taken by police officers after he broke and ran from the house of a family living near the store where the robbery occurred. He had gone there to use the telephone after he was unable to start his car, which was parked at the site of the robbery. Additionally, his fingerprints are found on items stolen and his guilt appears beyond dispute. Nevertheless, the possibility of bungling a prosecution in the conduct of line-ups is so real that we recommend to the deputy in charge that he read P. Wall, Eye Witness Identification, in Criminal Cases (1965), to understand the impropriety of his procedures.
Because we can, beyond any reasonable doubt, declare this record to demonstrate Settle’s guilt, we affirm under the rule announced in Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 2d 705; and Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.
Affirmed.
BOARDMAN and GRIMES, JJ., concur.
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James v. State, 393 So. 2d 1138 (Fla. 3d DCA 1981)…o cases holding Rule 3.390(a) mandatory, the trial court was obliged to instruct only on penalties for the offense charged, not on the penalties for any lesser-included offenses. Mitchell v. State, 304 So. 2d 466 (Fla. 3d DCA 1974); Settle v. State, 288 So. 2d 511 (Fla. 2d DCA 1974).1 Thus, the defendant was not entitled to have the jury instructed on the penalties for improper exhibition of a firearm and assault. The remaining issue before us is whether the trial court’s failure to instruct on the penalties…
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Robinson v. State, 338 So. 2d 1309 (Fla. 4th DCA 1976)…on attempts to commit offenses of a lesser degree than the offense charged, nor on attempts to commit lesser offenses included in the offense charged, if neither sort of attempt is expressly set forth in the accusatory pleading. Cf. Settle v. State, 288 So. 2d 511 (Fla.2d DCA 1974), wherein the court held that Fla.R.Crim.P. 3.390(a), which requires the trial court to inform the jury of the penalty fixed by law for the offense upon which the accused is then on trial, does not obligate the Court to inform the j…
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Williams v. State, 399 So. 2d 999 (Fla. 3d DCA 1981)….2d 882 (1965). .Anomalously, the jury need not be instructed on the penalty provisions of lesser-included of [*1003] fenses. James v. State, 393 So. 2d 1138 (Fla. 3d DCA 1981); Mitchell v. State, 304 So. 2d 466 (Fla. 3d DCA 1974); Settle v. State, 288 So. 2d 511 (Fla. 2d DCA 1974). . Where it is clear that the jury was given a full opportunity to exercise its inherent pardoning power and rejected pardon, as in the instance where despite being given an instruction on lesser-included offenses one step below…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chapman v. California, 386 U.S. 18 (U.S. 1967)
- United States v. Wade, 388 U.S. 218 (U.S. 1967)
- Harrington v. California, 395 U.S. 250 (U.S. 1969)
- Coco v. State, 62 So. 2d 892 (Fla. 1953)