Anderson v. State
| Decision Date | 03 December 1971 |
| Docket Number | No. 70--477,70--477 |
| Citation | 255 So.2d 550 |
| Parties | Randall ANDERSON, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Law Offices of Henry Gonzalez, Tampa, for appellant.
Robert L. Shevin, Atty. Gen. Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
We consider this day the troublesome and recurring question of when, in a criminal case, the defendant's requested jury instruction on a lesser included offense should be given when such lesser offense is Not necessarily included within the major offense charged.
Appellant was tried and convicted of a felony under an information which charged that he, Randall Anderson:
'. . . on the 30th day of December, 1969, in the County of Hillsborough and the State of Florida, did unlawfully aid or assist in the setting up, promoting or conducting of a lottery or a lottery drawing for money commonly known as Bolita, Cuba and/or Bond, a further description of which is to the County Solicitor unknown, in violation of Section 849.09(1)(d), Florida Statutes (F.S.A.) . . ..'
It is to be noted that the information sets forth the offense essentially in the general language of the statute cited therein, and there is no additional language employed which expressly alleges any overt act by which the defendant was supposed to have aided or assisted in the setting up, promoting or conducting of the lottery involved. Nonetheless, at trial, there was substantial prosecution evidence that on the day in question the appellant had sold a lottery ticket. If true, this would, of itself, constitute a misdemeanor condemned by subsection (g) of the aforesaid statute. But the state was merely relying on this evidence In addition to evidence of telephonic communications with known operators of a lottery to establish the charged felony of aiding or assisting. At the conclusion of the trial appellant requested a charge on the lesser offense of selling a share in a lottery but the trial judge refused. We consider this the principal meritorious point raised on appeal and we reverse.
Again, we are within the purview of Brown v. State. 1 In that case the question squarely before the court was whether a defendant under a robbery charge was entitled to a jury instruction on the lesser offense of larceny as Necessarily included in robbery. The question was decided in the affirmative; but the court, through Mr. Justice Thornal, considered the entire plethora of included offenses and classified them into four categories, viz.,
'(1) Crimes divisible into degrees.
(2) Attempts to commit offenses.
(3) Offenses Necessarily included in the offense charged.
(4) Offenses which May or may not be included in the offense charged, depending on the accusatory pleading and the evidence.'
We are obviously concerned here, of course, with category (4) since it is clear, requiring no further elaboration was think, that the offense of 'selling shares in a lottery' is not a Necessarily lesser included offense to the crime of assisting in the conducting of a lottery, although it May be. More precisely, we are concerned only with that aspect of category (4) pertaining to the scope of the accusatory pleading since we can assume, as it is conceded, that there is sufficient evidence of the lesser offense involved. Arguendo, too, we will assume sufficient evidence of a lesser offense in every instance throughout our entire discussion herein so that attention can be focused more clearly on the precise question before us.
Returning now to Brown on the point, the court observed, at p. 383, that:
'* * * the trial judge must examine the information to determine whether it alleges all of the elements of a lesser offense, albeit such lesser offense is Not an Essential ingredient of the major offense alleged. * * *'
Continuing:
* * *'
Thus, it was said:
'* * * In category four situations the lesser offense must be Comprehended by the allegations of the information and supported by the proof.' (Italics supplied)
Here, counsel for the state argues that in view of this language in Brown the defendant is not entitled to the requested charge herein for the reason that the lesser offense is not alleged within the accusatory pleading and therefore is not 'comprehended' thereby. He apparently construes Brown as requiring, in Every category (4) case And regardless of who requests it, that a lesser offense be substantially spelled out in the information as a condition precedent to the giving of a jury charge thereon. We disagree.
In a category (4) case such as here, wherein the lesser charge is not 'spelled out' in the accusatory pleading, we think there is a substantive difference whether a charge on such lesser offense is requested by the state or by the defendant. Accordingly, and before going further into our analysis of Brown, we cross the threshold of why it makes a substantive difference in these cases and we consider the potential impact the problems inherent in such difference could have on fundamental justice.
To begin with, it is aphoristic that an accused, not otherwise innocent, has an absolute right to be convicted of only that offense of which he is guilty. Correlatively, the state has no right to convict him of anything greater. The state does have the right, of course, indeed perhaps the duty, to seek a conviction on the highest offense which it in good faith believes the evidence will support; and it therefore controls the charge brought and the evidence in proof thereof. But the state's contention of higher guilt in any criminal case constitutes only an Ex parte claim in an adversary proceeding. The accused, on the other hand, must stand faced with the charge as made; and there is no way under our law in which he can compel the prosecution to concede his claim of lesser culpability, or to accept a plea of guilty to an offense less than the one charged, Notwithstanding that, in truth, the lesser charge may be all that he is guilty of. His only real chance is at the trial itself whereat he can either hope to rely on the weakness of the state's case as it pertains to the higher offense, or to present evidence of his own to try and persuade a jury that if he is guilty at all it is only of a lesser offense. It would therefore be manifestly unjust if the state, merely by limiting the language in an accusatory pleading, could prevent a defendant at trial from testifying or presenting evidence that he is only guilty of a lesser included offense and, at the same time, preclude the jury from ever deciding the question. Likewise, it would be equally unjust to permit the prosecution, again by limiting the language in an accusatory pleading, to leave the jury but one alternative to a not guilty verdict when its own evidence might fall short of establishing the charged offense but be sufficient to support a lesser included offense. The underlying considerations of due process require that the defendant must have his full day; and the giving of a defendant's requested charge on all included offenses, assuming sufficient evidence thereon, certainly would not prejudice the state in the premises since it still would have its full day on the charge it chooses to bring, all the surrounding circumstances of which it had presumably fully investigated.
Now, getting back to Brown, it cannot be said of course that that case permits of opening the door to such injustice. So we carefully analyze the final observations made therein as to why that court was expressly concerned with the allegations in the accusatory pleading in a category (4) case. It concluded: 2
(Italics supplied)
Obviously, at that point the court must necessarily have been concerned with a situation in which the State was seeking a charge on a lesser included offense or one in which such charge was given over the objection of the defendant. This is so because if the primary purpose of including the lesser offense within the allegations of the information is to 'apprise the defendant of all offenses of which he may be convicted,' it would hardly be a consideration when, by requesting a charge on the lesser offense or by acquiescing therein, the defendant himself is in effect asserting that he is fully aware that such lesser offense is in fact 'comprehended by the allegations of the information.' At the very least, he can't be heard to say he is unaware.
The dichotomy becomes clear, then. The defendant is entitled to a requested charge on a lesser included offense, whether it's spelled out in the accusatory pleading or not, because due process assures him a full day; on the other hand, the state may insist on such a charge only if the lesser offense is sufficiently 'comprehended' by the pleading so as to satisfy fundamental 'notice.'
Now, at this juncture, it should be noted that we reach the same result herein as that reached by our Supreme Court in Goswick v. State 3 which, at first blush, might appear to be contra to the recent Supreme Court case of State v. Smith. 4 We submit, however, it...
To continue reading
Request your trial
-
Dunn v. State
...as to circumstantial evidence was necessary only where the State's case was solely circumstantial, see, e.g., Anderson v. State, 255 So.2d 550 (Fla. 2d DCA 1971), rev. on other grounds, 270 So.2d 353 (Fla.1972). Later other cases applied the harmless error statute, see, e.g., Rose v. State,......
-
State v. Anderson
...ADKINS, Justice. By petition for certiorari, we have for review a decision of the District Court of Appeal, Second District (Anderson v. State, 255 So.2d 550) (Fla.App.), which allegedly conflicts with prior decisions of this Court (Brown v. State, 206 So.2d 377, (Fla.); State v. Smith, 240......
-
Logan v. State, 71--144
...appellant of grand larceny and found him guilty of robbery as charged. DeLaine v. State, Fla.1972, 262 So.2d 655. Cf. Anderson v. State, Fla.App.1971, 255 So.2d 550. Contra, Miles v. State, Fla.App.1972, 258 So.2d Affirmed. REED, C.J., and MAGER, J., concur. ...
-
State v. Fernandez
...of Appeal, in an opinion by Judge Liles, affirmed the conviction. While petition for rehearing was pending, the case of Anderson v. State, 255 So.2d 550 (Fla.App.) was considered by the District Court of Appeal and a different result reached. To be consistent, the District Court granted reh......