Gallo v. State

• Decision Date: 17 July 1986
• Docket Number: No. 67254,67254
• Citation: 11 Fla. L. Weekly 323,491 So.2d 541
• Parties: 11 Fla. L. Weekly 323 Vincent Francis GALLO, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 541

491 So.2d 541

11 Fla. L. Weekly 323

Vincent Francis GALLO, Petitioner, v. STATE of Florida, Respondent.

No. 67254.

Supreme Court of Florida.

July 17, 1986.

John C. Rayson of Sherman and Rayson, Fort Lauderdale, for petitioner.

Jim Smith, Atty. Gen., and Robert S. Jaegers and Sarah B. Mayer, Asst. Attys. Gen., West Palm Beach, for respondent.

McDONALD, Chief Justice.

The Fourth District Court of Appeal has certified the following question as being one of great public importance:

IS THE STATE ENTITLED TO HAVE JURY INSTRUCTIONS GIVEN ON NECESSARILY INCLUDED LESSER OFFENSES IN A CASE WHERE THE DEFENDANT REQUESTS THAT NO SUCH INSTRUCTIONS BE GIVEN AND KNOWINGLY AND INTELLIGENTLY WAIVES HIS RIGHT TO SUCH INSTRUCTION?

Gallo v. State, 472 So.2d 491, 492 (Fla. 4th DCA 1985). This Court has jurisdiction pursuant to article V, section 3(b)(4), Florida Constitution. We answer in the affirmative and approve the opinion of the district court.

A four-count information charged Gallo with kidnapping with the use of a firearm, two counts of sexual battery, and possession of a firearm during the commission of a felony. During the charge conference, Gallo's attorney requested a waiver of all lesser included offense instructions. Although the state attorney initially indicated that he had no objection to such a waiver, the trial judge stated that he was reluctant to grant Gallo's request because certain lesser included offenses were applicable as a matter of law. After the trial judge made his apprehensions known, the state attorney retracted his initial acquiescence and requested that the court instruct the jury as to the appropriate lesser included offenses. Under count I, the court instructed the jury as to kidnapping with the use of a firearm plus kidnapping without the use of a firearm and false imprisonment. As to counts II and III, the court instructed the jury on the charged offense and on attempted sexual battery with the use of a firearm, sexual battery with force not likely to cause serious injury, and battery. Under count IV, the court instructed the jury as to the charged offense plus improper exhibition of a firearm. Although he made a general objection to the court instructing on any lesser included offenses, Gallo made no specific objection to any particular instruction that the court actually gave. The jury found Gallo guilty of kidnapping without use of a firearm, guilty of two counts of sexual battery with force not likely to cause serious injury, and not guilty of possession of a firearm during the commission of a felony. On appeal, the Fourth District affirmed both the convictions and the sentences, but expressed some uncertainty concerning our prior opinion in Harris v. State, 438 So.2d 787 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984). Therefore, the district court certified the instant question.

This Court has long held that, upon a proper request, a trial judge must instruct the jury on necessarily included lesser offenses. See Harris, 438 So.2d at 796; State v. Washington, 268 So.2d 901 (Fla.1972); Brown v. State, 206 So.2d 377 (Fla.1968). In Harris, however, we made it clear that a defendant could make a knowing and intelligent waiver of his right to these instructions just as he could expressly waive his right to a jury trial. 438...