Lomax v. State
| Citation | 345 So.2d 719 |
| Decision Date | 31 March 1977 |
| Docket Number | No. 48547,48547 |
| Parties | Gregory Lewis LOMAX, Petitioner, v. STATE of Florida, Respondent. |
| Court | United States State Supreme Court of Florida |
Jack O. Johnson, Public Defender, Tenth Judicial Circuit, Judge C. Luckey, Jr., Public Defender, and Ellen Condon, Asst. Public Defender, Thirteenth Judicial Circuit, for petitioner.
Robert L. Shevin, Atty. Gen., William I. Munsey, Jr., Richard G. Pippinger, Raymond L. Marky, George R. Georgieff and Richard Wilson, Asst. Attys. Gen., for respondent.
Petitioner seeks certiorari review of the decision of the District Court of Appeal, Second District, which affirmed his conviction of robbery. We have jurisdiction of this cause under Article V, Section 3(b)(3), Florida Constitution, because the decision of the District Court, reported at 322 So.2d 650, conflicts with State v. Terry, 336 So.2d 65 (Fla.1976); Lighfoot v. State, 331 So.2d 338 (Fla.2d DCA 1976); Bracy v. State, 299 So.2d 126 (Fla.4th DCA 1974); Lewis v. State, 269 So.2d 692 (Fla.4th DCA 1972); and Miles v. State, 258 So.2d 333 (Fla.3d DCA 1972).
According to the District Court opinion, petitioner Lomax robbed a motel clerk at gunpoint and at the time of his arrest was carrying a paper bag full of cash and a suitcase containing a pistol. At petitioner's trial for robbery, defense counsel requested instructions on attempted robbery, assault with intent to commit robbery, grand larceny and petit larceny. While the trial court instructed on robbery, grand larceny and petit larceny, it refused to give an instruction on assault with intent to commit robbery and attempted robbery.
The District Court of Appeal, Second District, held that it was error for the trial court to refuse to give the requested instructions, but held the error to be harmless. In reaching this conclusion, the court stated:
'In short, we hold that the failure to give an instruction of an immediately lesser included offense may be harmless if there is overwhelming evidence that the appellant committed the greater crime and the jury could not reasonably have found that Only the lesser crime was committed.' (Emphasis in the original) 322 So.2d at 651.
Petitioner contends that the trial court in failing to give the requested instructions committed reversible rather than harmless error.
The question presented this Court in the case Sub judice is by no means one of first impression. We have been asked repeatedly to determine whether a trial court erred in refusing to instruct on a particular lesser-included offense, and if so whether that error was harmless or prejudicial. Initially, a line of case law evolved which supported the proposition that a trial court is not in error in refusing to instruct on lesser-included offenses when that court is of the opinion that, based upon the evidence adduced at trial, no reasonable jury could infer that the crime charged was not in fact committed. This proposition was rejected in Hand v. State, 199 So.2d 100 (Fla.1967). In that case this Court stated:
'In our opinion such judicial determination at trial level obviously takes a most critical evidentiary matter from the proper provine of the jury and vests it improperly as a matter of law with the trial judge.' 199 So.2d at 102.
While Hand held that it was 'error' for the trial court to refuse to instruct on a lesser-included offense when that instruction was required, this did not preclude the evolution of a subsequent line of authority that held the error to be harmless if, again, there exists overwhelming evidence that the defendant committed the crime charged. It is this theory that is embraced by the Second District Court of Appeal in the case Sub judice. See also Stephens v. State, 279 So.2d 331 (Fla.2d DCA 1973).
The major flaw underlying this rationale, however, is that it revives the very problem...
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Knight v. State
...vacuum. Rather, Montgomery flows from and was decided in a manner consistent with more than four decades of precedent. In Lomax v. State , 345 So. 2d 719 (Fla. 1977), disapproved in part on other grounds by Abreau , 363 So. 2d at 1064, this Court emphasized the role of the jury in deciding ......
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Tucker v. State
...important procedural safeguard. State v. Bruns, 429 So.2d 307 (Fla.1983). See State v. Abreau, 363 So.2d 1063 (Fla.1978); Lomax v. State, 345 So.2d 719 (Fla.1977); Brown v. State, 206 So.2d 377 (Fla.1968); Hand v. State, 199 So.2d 100 (Fla.1967). Under Rules of Criminal Procedure 3.490 and ......
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Haygood v. State
...instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible”); Lomax v. State, 345 So.2d 719, 720–21 (Fla.1977) (referring to “policy concept of ‘jury pardon’ ” and holding that failure to instruct on a lesser-included offense consti......
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Jones v. State, 84-2024
...of our rules. We do not view these changes as invasions by the trial judge into the province of the jury--our concern in Lomax v. State, 345 So.2d 719 (Fla.1977). In Lomax a trial judge refused to give a requested lesser offense instruction solely because there was ample evidence to support......