R. B. REYNOLDS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by not instructing the jury on lesser included offenses of robbery and by revoking probation without a separate hearing.
[1] A trial court errs by failing to instruct the jury on lesser included offenses of the charged crime when requested by the defense.
[2] A jury instruction error regarding lesser included offenses is not considered harmless error.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of robbery after the trial court refused to instruct the jury on lesser included offenses. Subsequently, his probation was rev…
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RYDER, Judge.
Appellant R. B. Reynolds was charged with robbery. At trial, the court announced that it intended to instruct the jury on robbery and petit larceny. Defense counsel requested instructions on assault with intent to commit robbery and attempted robbery. The court denied this request and gave the instructions as announced. Thereafter, the jury found appellant guilty as charged.
Two days after trial the court held a sentencing hearing. Having pronounced sentence on the robbery, the court revoked appellant’s term of probation for another offense on the basis of the jury’s verdict in the robbery trial.
On this appeal, appellant questions the validity of both the conviction and the order revoking probation.
Attempted robbery and assault with intent to commit robbery were both lesser included offenses of robbery. See Brown v. State, 206 So. 2d 377 (Fla.1968). Since this was the case, the court should have instructed the jury on these crimes, and its failure to do so cannot be considered harmless. Lomax v. State, 345 So. 2d 719 (Fla. 1977).
We must also reverse the revocation order. In State v. Spratling, 336 So. 2d 361 (Fla.1976), the supreme court said, “In the absence of stipulation or consent, the trial of the criminal case should not be construed as a probation revocation hearing but can be treated as such upon stipulation or consent made before or after the trial.” Spra-tling, supra at 364. The record in the present case is devoid of a stipulation by appellant to the court substituting the criminal trial for a revocation hearing. Because of this, the trial court should have held a hearing on the issue of whether appellant’s probation was to be revoked. See Hooks v. State, 207 So. 2d 459 (Fla. 2d DCA 1968).
We reverse appellant’s conviction on the charge of robbery and remand that case for a new trial. We also reverse the order revoking appellant’s probation and remand that case for proceedings consistent with this opinion.
HOBSON, Acting C. J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Parminter v. State, 762 So. 2d 966 (Fla. 2d DCA 2000)…ld not violate Mr. Parminter’s probation on that basis. Second, the general rule is that a trial on a new charge-here, the cocaine case-eannot be treated as a revocation hearing. See State v. Spratling, 336 So. 2d 361 (Fla.1976); Reynolds v. State, 352 So. 2d 1263 (Fla. 2d DCA 1977). This record contains neither a stipulation that the criminal trial would substitute for the revocation hearing nor a waiver of the right to a revocation hearing. Accordingly, we reverse the order revoking probation without prejud…
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Franklin v. State, 356 So. 2d 1352 (Fla. 2d DCA 1978)…The revocation of probation following a guilty verdict on charges upon which the revocation was based was said to comport with due process in Fuller v. State, 294 So. 2d 367 (Fla. 3d DCA 1974). Our holding does not conflict with Reynolds v. State, 352 So. 2d 1263 (Fla. 2d DCA 1977), because the record in that case does not indicate that any affidavit of probation violation was filed, or that Reynolds was given any kind of notice that his conviction in that case might form the basis for a probation revocation…
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Perez v. State, 579 So. 2d 413 (Fla. 3d DCA 1991)…PER CURIAM. Affirmed. See State v. Spratling, 336 So. 2d 361 (Fla.1976); Robinson v. State, 474 So. 2d 1274 (Fla. 3d DCA 1985); Reynolds v. State, 352 So. 2d 1263 (Fla. 2d DCA 1977).…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Lomax v. State, 345 So. 2d 719 (Fla. 1977)
- State v. Spratling, 336 So. 2d 361 (Fla. 1976)
- Hooks v. State, 207 So. 2d 459 (Fla. 2d DCA 1968)