Huckeba v. State, 46223

Decision Date30 July 1975
Docket NumberNo. 46223,46223
Citation322 So.2d 29
PartiesRobert HUCKEBA, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

James A. Gardner, Public Defender, and Elliott C. Metcalfe, Jr., Asst. Public Defender, for petitioner.

Robert L. Shevin, Atty. Gen., and Charles Corces, Jr., Asst. Atty. Gen., for respondent.


This cause is before us on a petition for writ of certiorari, supported by certificate of the District Court of Appeal, Second District, that its decision in Huckeba v. State, 299 So.2d 104 (Fla.App.2d 1974), is one which involves a question of great public interest.

Petitioner was informed against for grand larceny. He pled not guilty, but was found guilty by the jury, and was sentenced to five years. The trial court denied the petitioner's requested jury instruction under Florida Rule of Criminal Procedure 3.390(a) as to the maximum penalty for said crime. The Second District affirmed Per curiam and certified the question of whether the language of the above rule is mandatory or merely directory.

The identical question was certified to this Court in Johnson v. State, 308 So.2d 38 (Fla.1974). Therein, we found the language of the rule to be directory and not mandatory. Thus, the granting or denying of a request for such an instruction lies within the discretion of the trial judge. 1

We have found the petitioner's other points to be without merit. Accordingly, the writ of certiorari is discharged.

It is so ordered.

ADKINS, C.J., ROBERTS, BOYD, McCAIN and OVERTON, JJ., and MELTON, Circuit Judge, concur.

1 Winston v. State, 308 So.2d 40 (Fla.1974) was also before us on the same certified question and was decide on the authority of Johnson, supra.

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2 cases
  • Tascano v. State
    • United States
    • Florida Supreme Court
    • June 5, 1980
    ...on trial. The courts interpreted this rule as being directory and not mandatory with regard to the penalty instructions. Huckeba v. State, 322 So.2d 29 (Fla. 1975); Johnson v. State, 308 So.2d 38 (Fla. 1974); Kelsey v. State, 317 So.2d 445 (Fla. 1st DCA The rule as amended February 10 effec......
  • DeCastro v. State, 81-1943
    • United States
    • Florida District Court of Appeals
    • October 27, 1981
    ...of Criminal Procedure 3.390(a) for the trial court to instruct on penalties. See State v. Terry, 336 So.2d 65 (Fla.1976); Huckeba v. State, 322 So.2d 29 (Fla.1975); Lavatt v. State, 316 So.2d 261 (Fla.1975); Dorminey v. State, 314 So.2d 134 (Fla.1975); Johnson v. State, 308 So.2d 38 (Fla.19......

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