Simmons v. State, 88-115

• Decision Date: 12 January 1989
• Docket Number: No. 88-115,88-115
• Citation: Simmons v. State, 541 So.2d 1212, 14 Fla. L. Weekly 174 (Fla. App. 1989)
• Parties: 14 Fla. L. Weekly 174 Willie SIMMONS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1212

541 So.2d 1212

14 Fla. L. Weekly 174

Willie SIMMONS, Appellant, v.STATE of Florida, Appellee.

No. 88-115.

District Court of Appeal of Florida Fifth District.

Jan. 12, 1989.

Rehearing Denied April 14, 1989.

J. Craig Williams, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

Defendant was charged by indictment with first degree murder of Willie Grimes(Count I), and attempted first degree murder (Count II), attempted armed robbery (Count III) and attempted kidnapping (Count IV) of Willie Powell.The jury found defendant guilty of first degree murder as charged in Count I, guilty of the lesser included offense of aggravated assault with a firearm as to Count II, guilty of the lesser included offense of assault as to Count III and guilty of attempted kidnapping with a firearm as to Count IV.

Defendant raises various issues in this appeal, none of which have merit except for his contention that the trial court erred in refusing to instruct the jury on attempted false imprisonment as a necessarily lesser included offense of attempted kidnapping.

Since oral argument here, the supreme court has decided the case of State v. Sanborn, 533 So.2d 1169(Fla.1988), holding that false imprisonment is a necessarily lesser included offense of kidnapping, and that the...