Jackson v. State, 83-1858
| Decision Date | 04 May 1984 |
| Docket Number | No. 83-1858,83-1858 |
| Citation | 449 So.2d 411 |
| Parties | Johnell JACKSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellee.
Appellant was charged with armed robbery and found guilty of the lesser included offense of robbery. The trial court refused appellant's request for a jury instruction on theft. We reverse.
The trial court is required to instruct the jury on lesser included offenses necessarily included in the major offense charged. Brown v. State, 206 So.2d 377 (Fla.1968). It is impossible to prove robbery without proving theft. State v. Bruns, 429 So.2d 307 (Fla.1983). Because theft is not two or more steps from the offense appellant was convicted of, failure to give the requested instruction was not harmless error. State v. Abreau, 363 So.2d 1063 (Fla.1978); Butler v. State, 379 So.2d 715 (Fla. 5th DCA 1980).
There was no evidence presented at trial that the value of the property taken was $100 or more. In such a case, petit theft is the next immediate lesser included offense of robbery. Bruns.
Because appellant was convicted of the lesser offense of robbery, on retrial he cannot be prosecuted for armed robbery. Bowden v. State, 152 Fla. 715, 12 So.2d 887 (1943); opinion after remand, State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944).
Appellant's judgments and sentences for grand theft of an automobile and false imprisonment are affirmed.
REVERSED in part, and REMANDED for a new trial for the offence of robbery.
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Merrone v. State
...See also Bowden v. State, 152 Fla. 715, 12 So.2d 887 (1943), opinion after remand,154 Fla. 511, 18 So.2d 478 (1944); Jackson v. State, 449 So.2d 411 (Fla. 2d DCA 1984). 9. Although not necessary to our decision, because this case is remanded for a new trial we add the following: Merrone rai......
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Pina v. State, 84-770
...trial reveal the specific amount obtained. Therefore, appellant was entitled to a jury instruction on petit theft, see Jackson v. State, 449 So.2d 411 (Fla. 2d DCA 1984), if timely requested, see State v. Bruns, 429 So.2d 307, 310 (Fla.1983). However, his request was for an instruction on g......
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White v. State, 93-1456
...Sanders, and, consequently, the evidence is insufficient to convict for this offense. Sec. 812.13(1), Fla.Stat. (1991); Jackson v. State, 449 So.2d 411 (Fla. 2d DCA 1984); see Arnold v. State, 83 So.2d 105, 108 (Fla.1955). Because the reversal of this conviction may change the sentencing gu......