ROBERT HUCKEBA, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that Florida Rule of Criminal Procedure 3.390(a) regarding maximum penalty jury instructions is directory, not mandatory.
Petitioner was convicted of grand larceny and sought a jury instruction on the maximum penalty, which the trial court denied. The appellate court affi…
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PER CURIAM.
This cause is before us on a petition for writ of certiorari, supported by certificate of the District Court of Appeal, Second District, that its decision in Huckeba v. State, 299 So. 2d 104 (Fla.App.2d 1974), is one which involves a question of great public interest.
Petitioner was informed against for grand larceny. He pled not guilty, but was found guilty by the jury, and was sentenced to five years. The trial court denied the petitioner’s requested jury instruction under Florida Rule of Criminal Procedure 3.390(a) as to the maximum penalty for said crime. The Second District affirmed per curiam and certified the question of whether the language of the above rule is mandatory or merely directory.
The identical question was certified to this Court in Johnson v. State, 308 So. 2d 38 (Fla.1974). Therein, we found the language of the rule to be directory and not mandatory. Thus, the granting or denying of a request for such an instruction lies within the discretion of the trial judge.1
We have found the petitioner’s other points to be without merit. Accordingly, the writ of certiorari is discharged.
It is so ordered.
ADKINS, C. J., ROBERTS, BOYD, McCAIN and OVERTON, JJ., and MELTON, Circuit Judge, concur. . Winston v. State, 308 So. 2d 40 (Fla.1974) was also before us on the same certified question and was decide on the authority of Johnson, supra.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tascano v. State, 393 So. 2d 540 (Fla. 1980)…unsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial. The courts interpreted this rule as being directory and not mandatory with regard to the penalty instructions. Huckeba v. State, 322 So. 2d 29 (Fla. 1975); Johnson v. State, 308 So. 2d 38 (Fla. 1974); Kelsey v. State, 317 So. 2d 445 (Fla. 1st DCA 1975). The rule as amended February 10 effective July 1, 1977, reads as follows: The presiding judge shall charge the jury only upon the law of…
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DeCASTRO v. State, 406 So. 2d 495 (Fla. 3d DCA 1981)…laim must fail because at the time of DeCastro’s 1976 trial it was not mandatory under the then Florida Rule of Criminal Procedure 3.390(a) for the trial court to instruct on penalties. See State v. Terry, 336 So. 2d 65 (Fla.1976); Huckeba v. State, 322 So. 2d 29 (Fla.1975); Lavatt v. State, 316 So. 2d 261 (Fla.1975); Dorminey v. State, 314 So. 2d 134 (Fla.1975); Johnson v. State, 308 So. 2d 38 (Fla.1975); Golson v. State, 353 So. 2d 195 (Fla. 3d DCA 1977). Since the instruction was not required when DeCastr…
Authorities Cited
- Johnson v. State, 308 So. 2d 38 (Fla. 1974)
- Winston v. State, 308 So. 2d 40 (Fla. 1974)
- In re Adoption by Charles W. COX, Sr., 299 So. 2d 104 (Fla. 4th DCA 1974)
- Huckeba v. State, 299 So. 2d 104 (Fla. 2d DCA 1974)