Anderson v. State

Decision Date05 March 2020
Docket NumberNo. SC18-1059,SC18-1059
Citation291 So.3d 531
Parties Timothy ANDERSON, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner

Ashley Moody, Attorney General, Trisha M. Pate, Bureau Chief, and Amanda Stokes, Assistant Attorney General, Tallahassee, Florida, for Respondent

LAWSON, J.

This case is before the Court for review of the First District Court of Appeal's decision in Anderson v. State , 247 So. 3d 680 (Fla. 1st DCA 2018), which affirmed Timothy Anderson's felony conviction for aggravated assault with a deadly weapon, an automobile, and rejected Anderson's argument that his jury should have been instructed on reckless driving as a lesser-included offense. The First District certified that its decision directly conflicts with Piggott v. State , 140 So. 3d 666 (Fla. 4th DCA 2014), in which the Fourth District held on similar facts1 that a defendant is entitled to have his jury instructed on reckless driving as a lesser offense. Anderson , 247 So. 3d at 684. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we approve the First District's decision in Anderson and disapprove the Fourth District's decision in Piggott.

BACKGROUND

Timothy Anderson was charged with and convicted of aggravated assault with a deadly weapon after he drove his truck erratically and struck his girlfriend's car. Anderson , 247 So. 3d at 681. The criminal information alleged that Anderson "did unlawfully and intentionally make an assault upon [Anderson's girlfriend] with a motor vehicle, a deadly weapon[,] without intent to kill, contrary to [s]ection 784.021(1)(a), Florida Statutes [ (2014)2 ]." Id. at 682. At trial, Anderson requested a jury instruction on the offense of reckless driving as a permissive lesser-included offense. Id. at 681. The trial court denied his request. Id. On appeal, Anderson argued entitlement to a new trial at which the judge instructs the jury on reckless driving as a lesser-included offense of aggravated assault with a deadly weapon. Id.

The First District affirmed Anderson's conviction and sentence, reasoning that reckless driving is not a permissive lesser-included offense of aggravated assault with a deadly weapon, an automobile, unless the charging instrument alleges that the defendant was driving at the time of the offense—which the First District found not to have been alleged. Id. at 683-84. The First District also certified conflict with the Fourth District's decision in Piggott , which came to the opposite conclusion, namely that reckless driving is a permissive lesser-included offense of aggravated battery with a deadly weapon so long as the weapon alleged is a motor vehicle and it is undisputed at trial that the defendant was driving. Id. at 684 ; Piggott , 140 So. 3d at 669, 671 n.1.

ANALYSIS

Anderson argues that because (1) the information alleged use of an automobile to commit the offense and (2) it was undisputed that he was driving at the time of the offense, he was entitled to a jury instruction on the charge of reckless driving as a permissive lesser-included offense. We review this legal issue de novo. See Khianthalat v. State , 974 So. 2d 359, 360 (Fla. 2008). We reject this argument and will (1) explain the relevant law regarding permissive lesser-included offenses, (2) explain why reckless driving is not an applicable lesser-included offense of the aggravated assault charge in this case, and (3) address Anderson's specific arguments, which are based upon the analysis in Piggott and the dissent in Anderson.

A. Permissive Lesser-Included Offenses.

In In re Standard Jury Instructions in Criminal Cases , 431 So. 2d 594 (Fla. 1981), we recognized two categories of lesser-included offenses: those "necessarily included in the offense charged," id. at 596, which are not at issue here, and those "which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence." Id. This latter category is often referenced as "permissive" lesser-included offenses. Stevens v. State , 226 So. 3d 787, 790 (Fla. 2017). "A permissive lesser included offense exists when ‘the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been.’ " Sanders v. State , 944 So. 2d 203, 206 (Fla. 2006) (alterations in original) (quoting State v. Weller , 590 So. 2d 923, 925 n.2 (Fla. 1991) ).

This Court in Brown v. State , 206 So. 2d 377, 383 (Fla. 1968), overruled in part on other grounds by Standard Jury Instructions in Criminal Cases , 431 So. 2d at 597, described the process by which trial judges determine whether a permissive lesser-included offense is included in the offense charged, stating that "the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense ... [and] [i]f the accusation is present, then the judge must determine from the evidence whether it supports the allegation of the lesser included offense." A jury instruction on a permissive lesser-included offense "is appropriate only if the allegations of the greater offense contain all the elements of the lesser offense and the evidence at trial would support a verdict on the lesser offense." Williams v. State , 957 So. 2d 595, 599 (Fla. 2007). A trial judge is therefore required to give a jury instruction on a permissive lesser-included offense (upon request) "if the following two conditions are met: (1) the indictment or information must allege all the statutory elements of the permissive lesser included offense; and (2) there must be some evidence adduced at trial establishing all of these elements.’ " Khianthalat , 974 So. 2d at 361 (quoting Jones v. State , 666 So. 2d 960, 964 (Fla. 3d DCA 1996) ). With respect to the first condition, "Florida law is well settled that the elements of an offense cannot be established by mere inference." State v. Von Deck , 607 So. 2d 1388, 1389 (Fla. 1992) (citing State v. Dye , 346 So. 2d 538, 541 (Fla. 1977) ).

Von Deck is instructive. In that case, we accepted review to settle a conflict of decisions over whether a jury could be instructed on the charge of aggravated assault as a permissive lesser-included offense of the charge of attempted murder by shooting. Id. at 1389. We explained that aggravated assault includes an element of "putting [the victim] in fear," which is not an element of attempted murder and was not alleged in the information. Id. We expressly rejected the argument "that the element of ‘putting in fear’ can be established by inference, because a shooting is likely to create such fear," id. , explaining that while it would be true in some cases that being shot at will put the victim in fear, "it will not be true in all [cases because] .... [i]t is possible to commit an attempted murder without also committing aggravated assault, such as where the victim remains unaware of the attempted murder until some time has elapsed after the commission." Id. We reiterated the well-settled rules "that the elements of an offense cannot be established by mere inference," and that "an instruction cannot be given on a permissive lesser included offense unless both the accusatory pleading and the evidence support the commission of that offense." Id. (citing Brown , 206 So. 2d at 383 ).

The requirement that an offense not be submitted to the jury as a permissive lesser-included offense unless all elements are alleged in the charging document for the greater offense is an application of the more general principle that juries are not to be instructed on uncharged crimes. See generally , 15A Fla. Jur. 2d Criminal LawProcedure § 2040 (2019). We view this rule as justified on two bases. The most obvious, and most often cited, is that the due process clause requires that a defendant be put on clear notice of all crimes for which he or she is in jeopardy of being convicted and punished. U.S. Const. amend. XIV, § 1 ; art. I, § 9, Fla. Const.; art. I, § 16(a), Fla. Const.; Weatherspoon v. State , 214 So. 3d 578, 583-84 (Fla. 2017) (quoting Price v. State , 995 So. 2d 401, 404 (Fla. 2008) ). The second justification is found in Florida's constitutional directive for separation of powers, art. II, § 3, Fla. Const., and the executive branch's exclusive discretion under Florida law to prosecute or not prosecute an individual for crimes committed. See ch. 27, Fla. Stat. (2019); see also Ayala v. Scott , 224 So. 3d 755, 759 n.2 (Fla. 2017) ("[T]he power to prosecute ... is a purely executive function ...."); State v. Bloom , 497 So. 2d 2, 3 (Fla. 1986) ("Under Florida's constitution, the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute."); Fulk v. State , 417 So. 2d 1121, 1126 (Fla. 5th DCA 1982) (Cowart, J., concurring specially) ("Although state attorneys, like all attorneys, are officers of the court, the execution of criminal statutes by enforcement, including prosecution, is an executive function of government. The state attorney, when acting as a prosecuting officer under article V, section 17, of the Florida Constitution and under chapter 27 of the Florida Statutes, is performing an executive function and not a judicial function." (footnote omitted)). Any judicial rule authorizing a defendant to present an uncharged offense for a jury's consideration, over the objection of the prosecution, would interfere with the executive branch's exclusive authority to prosecute cases and would constitute a substantive change in Florida law.

B. Application in This Case.

We now turn to whether the information charging Anderson with aggravated assault with a deadly weapon alleged all statutory elements of...

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