Amado v. State
| Decision Date | 05 September 1991 |
| Docket Number | No. 76209,76209 |
| Parties | Ernesto AMADO, Petitioner, v. STATE of Florida, Respondent. 585 So.2d 282, 16 Fla. L. Week. S601 |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender and Kevin Briggs, Asst. Public Defender, Bartow, for petitioner.
Robert A. Butterworth, Atty. Gen. and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for respondent.
We review Amado v. State, 563 So.2d 736 (Fla. 2d DCA 1990), because of direct conflict with Essex v. State, 539 So.2d 559 (Fla. 4th DCA 1989). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash the opinion under review.
Amado was convicted of trafficking in cocaine. The issue we address is whether the trial court committed reversible error in denying Amado's request to instruct the jury on simple possession as a lesser included offense of trafficking in cocaine.
In State v. Daophin, 533 So.2d 761 (Fla.1988), we held that possession is not a necessarily lesser included offense of trafficking. The information in Daophin did not allege trafficking by possession, but in the instant case the information alleged trafficking by sale, manufacture, delivery, or possession. While this pleading does not affect our ruling that possession is not a necessarily lesser included offense, it does make possession a permissible lesser included offense if the evidence supports it.
Permissive lesser included offenses are those offenses that may or may not be lesser included offenses depending on the pleadings and the evidence presented. Wilcott v. State, 509 So.2d 261, 262 (Fla.1987). An instruction on a permissive lesser included offense must be given "when the pleadings and the evidence demonstrate that the lesser offense is included in the offense charged." Id. In the instant case, the district court held that simple possession is a permissive lesser included offense of trafficking, but ruled that the evidence did not support the instruction. Contrary to the district court's decision, we find that the evidence presented at trial supports simple possession.
An instruction on a permissive lesser included offense should be precluded only where "there is a total lack of evidence of the lesser offense." In re Use by Trial Courts of Standard Jury Instructions, 431 So.2d 594, 597 (Fla.), modified, 431 So.2d 599 (Fla.1981). As there was no such absence of evidence in the instant case, the trial court committed reversible error in refusing the requested instruction on simple possession. The fact that the evidence was...
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Vickery v. State
...jury on lesser included offenses is based on the concept of jury pardons. See State v. Estevez, 753 So.2d 1 (Fla.1999); Amado v. State, 585 So.2d 282, 283 (Fla.1991) ("We still allow juries to convict on lesser offenses under our recognition of the jury's right to exercise its `pardon power......
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Tatara v. Sec'y, Dep't of Corr.
...re Use by Trial Courts of Standard Jury Instructions, 431 So. 2d 594, 597 (Fla.), modified, 431 So. 2d 599 (Fla. 1981); Amado v. State, 585 So. 2d 282, 282-83 (Fla. 1991). Florida Rule of Criminal Procedure 3.510 provides in pertinent part that the jury may convict the defendant of any offe......
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Wong v. State
...524, 527 (Fla. 4th DCA 2006). If these two requirements are met, the trial court must give the requested instruction. Amado v. State, 585 So.2d 282, 282–83 (Fla.1991) ; McKiver v. State, 55 So.3d 646, 649 (Fla. 1st DCA 2011). This is so even if the evidence is overwhelming that the defendan......
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State v. Davis
...See Patton v. People, 35 P.3d 124, 130-31 (Colo.2001); Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993). See also Amado v. State, 585 So.2d 282 (Fla.1991); People v. Freeman, 121 Ill.App.3d 1023, 77 Ill.Dec. 266, 460 N.E.2d 125 (1984). But the majority of jurisdictions that have decided ......