STATE OF FLORIDA, PLAINTIFF-APPELLANT,
v.
WOODROW DIGGS AND BRADLEY NELSON SMITH, DEFENDANT-APPELLEE
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The court held that the failure to instruct the jury on attempted robbery was harmless error when the jury convicted the defendants of the highest offense proven beyond a reasonable doubt.
Defendants were convicted of robbery, but the trial court granted them a new trial for failing to instruct the jury on attempted robbery. The trial ju…
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PER CURIAM.
The State timely appeals the order of the trial court granting defendants, Diggs and Smith, a new trial because of the court’s failure to give an instruction on attempted robbery. We reverse.
The defendants were charged with three counts of robbery and each defendant was convicted on all three counts. The court instructed the jury on the lesser offenses of assault with intent to commit robbery, grand larceny, assault with intent to commit grand larceny, petit larceny and assault with intent to commit petit larceny. The court denied the defendant’s requested instruction on attempted robbery but subsequently granted a new trial because of its failure to so instruct the jury.
The trial judge did not have the benefit of Dobbert v. State, a Supreme Court of Florida case, 328 So. 2d 433 (1976), when he granted a new trial due to the failure to instruct on attempted robbery. Dobbert stands for the principle that it is not reversible error for failure to instruct on attempt when the jury finds a defendant guilty of the highest offense which has been proven beyond a reasonable doubt when it was empowered to find him guilty of the lesser offenses.
In the Case sub judiee, the jury found the defendants guilty of robbery. Failure to instruct on attempt was harmless error. Reversed and remanded for further proceedings consistent with this opinion.
MAGER, C. J., ALDERMAN, J., and WEAVER, SIDNEY M., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dane Craig Garrison v. State, 340 So. 2d 1171 (Fla. 4th DCA 1976)…sentenced to death. Relying heavily on DeLaine v. State, supra, and Spigner v. State, supra, the court held that the trial judge did not commit reversible error in failing to instruct on attempt. Most recently this court in State v. Diggs, 4th DCA, 336 So. 2d 446, 1976, relying on Dobbert v. State, supra, held that it was not reversible error when the trial court failed to give defendants’ requested instruction on attempted robbery. The defendants were charged and convicted of robbery, the jury having been i…1 / 2
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Abreau v. State, 347 So. 2d 819 (Fla. 3d DCA 1977)…hich is necessarily included in the offense charged. The court shall charge the jury in this regard.” . Dobbert v. State, 328 So. 2d 433 (Fla.1976); State v. Wilson, 276 So. 2d 45 (Fla.1973); Dean v. State, 265 So. 2d 15 (Fla.1972); State v. Diggs, 336 So. 2d 446 (Fla. 4th DCA 1976); Lomax v. State, 322 So. 2d 650 (Fla. 2d DCA 1975); Sherman v. State, 307 So. 2d 257 (Fla. 2d DCA 1975); Spigner v. State, 304 So. 2d 496 (Fla. 1st DCA 1974); Stephens v. State, 279 So. 2d 331 (Fla. 2d DCA 1973); Logan v. State,…
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Harrison v. State, 348 So. 2d 51 (Fla. 4th DCA 1977)…DAUKSCH, Judge. AFFIRMED on authority of Dobbert v. State, 328 So. 2d 433 (Fla.1976) and State v. Diggs, 336 So. 2d 446 (Fla.4th DCA 1976). See also Garrison v. State, 340 So. 2d 1171 (Fla.4th DCA 1976). MAGER, C. J., and CROSS, J., concur.…
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- Dobbert v. State, 328 So. 2d 433 (Fla. 1976)