WILSON BRACY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilson Bracy was convicted by jury of robbery and first-degree murder in the death of Thomas Huggins. The Florida appellate court reversed because the trial judge erred in refusing to instruct the jury on lesser-included offenses (attempted murder, attempted robbery, and assault with intent to commit murder), despite a mandatory rule requiring such instructions whenever they are supported by the evidence.
The trial court erred in refusing to give jury instructions on attempted murder, attempted robbery, and assault with intent to commit murder. Under Florida law, trial courts must instruct the jury on attempts to commit charged offenses and on all necessarily included offenses, regardless of the strength of evidence establishing the principal crime.
[1] A trial court must instruct the jury on an attempt to commit the offense charged if such attempt is an offense, and on all offenses necessarily included within the offens…
[2] The duty to instruct the jury on necessarily included offenses and attempts applies even when the evidence clearly establishes the crime charged.
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Join FLexlaw to unlock all legal intelligence“It is apparent that in every criminal case it is mandatory for the trial court to instruct the jury on an attempt to commit the offense charged if such attempt is an offense, and on all offenses necessarily included within the offense charged. Such instructions must be given even though it is the opinion of the trial court that the proofs clearly establish the crime charged.”
Establishes the mandatory nature of lesser-included offense instructions regardless of the strength of evidence for the principal crime
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Join FLexlaw to unlock all legal intelligenceWilson O. Bracy was charged with the robbery and murder of Thomas Huggins that occurred on August 21, 1972. Bracy was tried and convicted by jury on b…
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CROSS, Judge.
Appellant-defendant, Wilson O. Bracy, appeals a judgment adjudicating him guilty of robbery and first degree murder. We reverse.
Wilson O. Bracy was charged by an amended information for the robbery and murder of one Thomas Huggins which occurred on August 21, 1972. Bracy was tried and convicted by jury on both counts of the amended information and subsequently adjudged guilty by the trial court. Hence this appeal.
The primary question for our determination .on this appeal is whether the trial court erred in refusing the defendant’s request for the court to instruct the jury on attempted murder, attempted robbery and assault with the intent to commit murder. Rule 3.510 Fla.RCrP (1973) 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.”
It is apparent that in every criminal case it is mandatory for the trial court to instruct the jury on an attempt to commit the offense charged if such attempt is an offense, and on all offenses necessarily included within the offense charged. Such instructions must be given even though it is the opinion of the trial court that the proofs clearly establish the crime charged. Brown v. State, 206 So. 2d 377 (Fla.1968); Lewis v. State, 269 So. 2d 692 (Fla.App.1972); Henry v. State, 277 So. 2d 78 (Fla. App.1973); Ward v. State, 287 So. 2d 138 (Fla.App.1973); McClam v. State, 288 So. 2d 285 (Fla.App.1974).
In the instant case, at conclusion of the presentation of evidence the defendant requested the trial court in writing to instruct the jury on attempted robbery, attempted murder and assault with intent to commit murder. The trial court commented that the evidence clearly established robbery and murder, and declined to give such instructions. We conclude that the refusal to give the requested instructions was error. Accordingly, the judgment is reversed and the cause remanded for a new trial.
Reversed and remanded.
WALDEN and MAGER, JJ., concur.
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Lomax v. State, 345 So. 2d 719 (Fla. 1977)…Article V, Section 3(b)(3), Florida Constitution, because the decision of the District Court, reported at 322 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…
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Dobbert v. State, 328 So. 2d 433 (Fla. 1976)…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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Lomax v. State, 322 So. 2d 650 (Fla. 2d DCA 1975)…larceny and petit larceny. Several opinions have indicated that assault with intent to commit robbery is a category (3) 1 necessarily lesser included offense of robbery. Gilford v. State, Fla.1975, 313 So. 2d 729; Bracy v. State, Fla.App.4th, 1974, 299 So. 2d 126; Henry v. State, Fla.App.2d, 1973, 277 So. 2d 78. However, the Supreme Court recently held in State v. White, Fla.1975, 324 So. 2d 630, (Opinion filed September 10, 1975), that one of the elements of assault is the victim’s well-founded fear that vi…
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
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Henry v. State, 277 So. 2d 78 (Fla. 2d DCA 1973)
- Ward v. State, 287 So. 2d 138 (Fla. 4th DCA 1973)
- Lewis v. State, 269 So. 2d 692 (Fla. 4th DCA 1972)
- McCLAM v. State, 288 So. 2d 285 (Fla. 4th DCA 1974)