JOHN HUFF, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Huff was convicted of robbery with a deadly weapon using a closed pocketknife and sentenced to life imprisonment as a habitual felony offender. The court reversed and remanded because the trial judge erred by refusing to instruct the jury on robbery with a weapon, a necessarily lesser included offense.
The trial court committed reversible error by refusing to instruct the jury on robbery with a weapon because it is a necessarily lesser included offense of robbery with a deadly weapon. Trial judges are required to give instructions on necessarily lesser included offenses when timely requested.
[1] A trial court errs by refusing a timely requested jury instruction on a necessarily lesser included offense.
[2] Robbery with a weapon is a necessarily lesser included offense of robbery with a deadly weapon.
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Join FLexlaw to unlock all legal intelligence“A trial judge is required to give an instruction when timely requested on necessarily lesser included offenses of the crime charged.”
Establishes the legal requirement that triggered the reversible error
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Join FLexlaw to unlock all legal intelligenceHuff was charged with robbery with a deadly weapon under Florida law. At trial, evidence showed the weapon used was a closed pocketknife. The jury con…
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BOARDMAN, Chief Judge.
Appellant, John Huff, was charged with robbery with a deadly weapon in violation of Section 812.13, Florida Statutes (1975). He was tried by a jury and convicted of the offense with which he was charged. At trial the evidence introduced showed that the weapon used in the robbery was a closed pocketknife. After a hearing, subsequent to the trial, appellant was declared to be a habitual felony offender and sentenced to life in prison with forty-eight days credit for time served.
On this appeal appellant raises the question of whether the trial judge committed reversible error in failing to instruct the jury on the offense of robbery with a weapon pursuant to Fla.R.Crim.P. 3.150. We reverse and remand to the trial court for a new trial.
Appellant’s counsel made a timely request that the trial court instruct the jury on the crimes of robbery with a deadly weapon, robbery with a weapon, and robbery. The trial judge did instruct the jury on robbery with a deadly weapon and robbery but refused to instruct on robbery with a weapon. A trial judge is required to give an instruction when timely requested on necessarily lesser included offenses of the crime charged. State v. Terry, 336 So. 2d 65 (Fla.1976). Thus, if robbery with a weapon is a necessarily lesser included offense of robbery with a deadly weapon, as we believe it is, it follows that the trial court erred in failing to give appellant’s requested instruction.
In Brown v. State, 206 So. 2d 377, 382 (Fla.1968), the Florida supreme court defined a necessarily lesser included offense as “an essential aspect of the major offense. Under this definition it is clear that robbery with a weapon is a necessarily lesser included offense of robbery with a deadly weapon. It would be manifestly impossible to prove robbery with a deadly weapon without proving robbery with a weapon since obviously a deadly weapon is a weapon. In this case the evidence concerning the closed pocketknife would prove the presence of a weapon as well as the presence of a deadly weapon. Furthermore, the robbery statute clearly delineates three stages or degrees of robbery in descending order: robbery with a deadly weapon, robbery with a weapon, and robbery without a weapon. Section 812.13(2), Florida Statutes (1975).
For the reasons assigned above we hold that the trial court committed error in refusing to give the instruction on robbery with a weapon and reverse. Lomax v. State, 345 So. 2d 719 (Fla.1977).
In view of our decision we need not reach the other two issues raised by appellant.
REVERSED and REMANDED for a new trial.
GRIMES and OTT, JJ., concur.
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Reddick v. State, 394 So. 2d 417 (Fla. 1981)…McDONALD, Justice. We review the opinion of the Fifth District Court of Appeal in Reddick v. State, 380 So. 2d 1330 (Fla. 5th DCA 1980), which expressly and directly conflicts with Growden v. State, 372 So. 2d 930 (Fla.1979), and Huff v. State, 350 So. 2d 123 (Fla.2d DCA 1977), on the same point of law. Art. V, § 3(b)(3), Fla.Const. Reddick was convicted of robbery with a firearm pursuant to section 812.13(2)(a), Florida Statutes (1975). The trial judge charged the jury on robbery with a firearm, attemp…
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Growden v. State, 372 So. 2d 930 (Fla. 1979)…tiorari we have for review an opinion of the district court of appeal, fourth district (Growden v. State, 347 So. 2d 631 (Fla. 4th DCA 1977)), which allegedly conflicts with a decision of the district court of appeal, second district (Huff v. State, 350 So. 2d 123 (Fla.2d DCA 1977)), on the same point of law. Art. V, § 3(b)(3), Fla.Const. The essential issue is whether subsections (a), (b), and (c) of section 812.13(2), Florida Statutes (Supp.1974), are merely sentencing guidelines for the trial judge or whe…
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Bradley v. State, 378 So. 2d 870 (Fla. 2d DCA 1979)…dge erroneously refused to instruct the jury on the lesser-included offense of “simple” burglary (burglary of a structure other than a dwelling) as defined in Section 810.02(3) — and such an instruction should be given on retrial, see Huff v. State, 350 So. 2d 123 (Fla.2d DCA 1977) — and no verdict form covering that offense was given to them, so the jury had no knowledge of this lesser included offense and could not have found appellant guilty thereof. We therefore conclude that the jury intended to find app…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Lomax v. State, 345 So. 2d 719 (Fla. 1977)
- State v. Terry, 336 So. 2d 65 (Fla. 1976)