Lomax v. State, 74--1089
| Decision Date | 19 November 1975 |
| Docket Number | No. 74--1089,74--1089 |
| Citation | 322 So.2d 650 |
| Parties | Gregory Lewis LOMAX, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James A. Gardner, Public Defender, Sarasota, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
This case is another in a long line of cases which concern the effect of the failure to give a requested instruction on a lesser included offense.
On the night of March 28 the appellant was seen hanging around the lobby of a motel for a couple of hours. He then pulled a pistol on the clerk and had her fill a paper bag with the contents of the cash register. He took her across the street to another building, had her disrobe and tied her in a shower. She managed to get free and called the police. A police officer heard the radio description of the robber and began to cruise the area. He stopped appellant and a fight ensued. The appellant then fled but was caught by other officers responding to the sounds of gunfire. The appellant was carrying a suitcase containing a pistol and a paper bag full of cash. Appellant was charged with robbery.
At trial appellant was identified as the perpetrator of the crime and was convicted of robbery. Before the jury was charged, however, the defense requested instructions on attempted robbery, assault with intent to commit robbery, grand larceny and petit larceny. The court refused to instruct on assault with intent to commit robbery and attempted robbery expressly for the reasons that the only lesser included offenses to robbery set forth in Florida Standard Jury Instructions in Criminal Cases are grand larceny and petit larceny.
Several opinions have indicated that assault with intent to commit robbery is a category (3) 1 necessarily lesser included offense of robbery. Gilford v. State, Fla.1975, 313 So.2d 729; Bracy v. State, Fla.App.4th, 1974, 299 So.2d 126; Henry v. State, Fla.App.2d, 1973, 277 So.2d 78. However, the Supreme Court recently held in State v. White, Fla.1975, 324 So.2d 630, (Opinion filed September 10, 1975), that one of the elements of assault is the victim's well-founded fear that violence is imminent. Under the reasoning of that case where, as here, the information charges robbery in the usual statutory terms, it would be possible to commit the robbery without committing an assault. Therefore, if anything, assault with intent to commit robbery could have only been a category (4) offense in this case. Turning to the proof, we find ample evidence of an assault so it was error to fail to give the requested instruction on this charge. 2 Likewise, the mandate of RCrP 3.510 required an instruction on attempted robbery. The question posed is whether the failure to give these instructions can be considered harmless error.
While also being different in kind, assault with intent to commit robbery is a more serious crime than grand larceny in terms of penalty. Therefore, the rule of DeLaine v. State, Fla.1972, 262 So.2d 655, holding harmless the failure to give an instruction 'two steps removed,' does not apply. Yet, the evidence in this case is so overwhelming, we are prompted to ask whether the harmless error rule can apply where the instruction which should have been given concerns as offense one step removed...
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Knight v. State
...crime and the jury could not reasonably have found that only the lesser crime was committed." Id. at 720 (quoting Lomax v. State , 322 So. 2d 650, 651 (Fla. 2d DCA 1975) ). This Court concluded that the failure to instruct on a necessarily lesser included offense "invade[s] the province of ......
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State v. Thomas
...4th DCA 1976); Lightfoot v. State, 331 So.2d 388 (Fla. 2d DCA 1976); Parker v. State, 330 So.2d 148 (Fla. 2d DCA 1976); Lomax v. State, 322 So.2d 650 (Fla. 2d DCA 1975).4 See Milazzo v. State, 359 So.2d 923 (Fla. 3d DCA 1978); Henry v. State, 344 So.2d 1311 (Fla. 3d DCA 1977); Silvestri v. ......
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Abreau v. State, 76-570
......State, 262 So.2d 655 (Fla.1972). We disagree. The Florida Supreme Court in Lomax v. State, 345 So.2d 719 (Fla.1977), receded from DeLaine and its progeny 5 and held as follows:. "(W)e . . . hold that when failure to instruct on a ......
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Silvestri v. State
...14, 1976); Rule 3.510, F.R.Cr.P.; see State v. Terry, 336 So.2d 65 (Fla.Sup., opinion filed Feb. 25, 1976); but see Lomax v. State, 322 So.2d 650 (Fla.App.2d 1975), overruled in Lightfoot v. State, supra. The Reason for this rule, in the light of its total lack of support in reason or logic......