Lightfoot v. State, s. 75--1196
| Decision Date | 14 April 1976 |
| Docket Number | 75--1197,Nos. 75--1196,s. 75--1196 |
| Parties | Willie LIGHTFOOT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack O. Johnson, Public Defender, and Steven H. Denman, Asst. Public Defender, and Paul J. Martin, Legal Intern, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Appellant was convicted of the sale and possession of heroin on consecutive days. The overwhelming evidence supports the jury's findings of guilt. The only point which warrants our consideration is whether the court committed reversible error in failing to give a requested jury instruction on attempted sale. Rule 3.510, RCP, requires the court to charge the jury on an attempt where a defendant is being tried for any offense in which the attempt to commit such offense is also an offense. Since the attempted sale of heroin is undoubtedly a separate offense, the court erred in failing to charge the jury on this offense.
The evidence in this case clearly reflects that any sales of heroin in which the appellant was involved were fully consummated. An attempt to commit a crime contemplates an incompleted act as distinguished from the completed act necessary for the crime. Robinson v. State, Fla.App.3d, 1972, 263 So.2d 595. Therefore, it may logically be said that the evidence did not support a charge of attempted sale of heroin.
In similar circumstances, this court recently held in Lomax v. State, Fla.App.2d, 1975, 322 So.2d 650, that where the evidence of the completed crime was so great that there was no rational basis for the jury to have concluded that the attempted crime was the only crime committed the failure to charge on attempt as required by Rule 3.510, RCP, constituted harmless error. Lomax was grounded in substantial part upon the recent case of Gilford v. State, Fla.1975, 313 So.2d 729, in which the Supreme Court held that it was not error to refuse to give a requested charge of breaking and entering with intent to commit petty larceny where the only evidence indicated that the value of the property that the defendant intended to steal was over $100.
However, since our opinion in Lomax, the Supreme Court has revisited the ever perplexing problem of instructions for lesser included offenses in State v. Terry, Fla., 336 So.2d 65 (Opinion filed February 25, 1976). By a four to three decision, that court held that where the defendant was charged with assault with intent to commit first degree murder and was convicted of aggravated assault, the trial court committed reversible error in failing to give requested instructions on assault and battery and bare assault. In so doing, the Supreme Court reversed the District Court of Appeal which had held, in effect, that since the defendant had shot the victim with a pistol and interposed a plea of self defense, if she was guilty of anything, she was guilty, at the very least, of aggravated assault. In rejecting this reasoning, the Supreme Court quoted with approval from Hand v. State, Fla.1967, 199 So.2d 100, as follows:
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