State v. Johnson

• Decision Date: 28 May 1992
• Docket Number: No. 77239,77239
• Citation: 601 So.2d 219
• Parties: STATE of Florida, Petitioner, v. Sinclair JOHNSON, Respondent. 601 So.2d 219, 17 Fla. L. Week. S299
• Court: Florida Supreme Court

Page 219

601 So.2d 219

STATE of Florida, Petitioner, v. Sinclair JOHNSON, Respondent.

No. 77239.

601 So.2d 219, 17 Fla. L. Week. S299

Supreme Court of Florida.

May 28, 1992.

Robert A. Butterworth, Atty. Gen., James W. Rogers, Bureau Chief, Asst. Atty. Gen. and Virlindia Doss, Asst. Atty. Gen., Tallahassee, for petitioner.

Clyde M. Collins, Jr., Jacksonville, for respondent.

GRIMES, Justice.

We review Johnson v. State, 572 So.2d 957, 959 (Fla. 1st DCA 1990), in which the court certified the following question as being of great public importance:

IS THE STATE ENTITLED TO HAVE JURY INSTRUCTIONS GIVEN ON CATEGORY 2 INCLUDED LESSER OFFENSES, IN ADDITION TO CATEGORY 1 NECESSARILY INCLUDED LESSER OFFENSES, IN A CASE WHERE THE DEFENDANT REQUESTS THAT NO SUCH INSTRUCTIONS BE GIVEN AND KNOWINGLY AND INTELLIGENTLY WAIVES HIS RIGHT TO SUCH INSTRUCTIONS?

We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution.

Johnson was charged with attempted first-degree murder as well as other crimes. Specifically, the information stated that Johnson "did attempt to unlawfully kill Robert Gooden ... by shooting the said Robert Gooden, with a revolver, with a premeditated design to effect the death of Robert Gooden...." At the trial there was testimony that during the course of an argument between them, Johnson pulled out a gun and shot Gooden in the kneecap. Johnson then approached the victim and shot him two more times. Johnson testified that he shot Gooden in self-defense.

At the jury charge conference following the close of testimony, Johnson's attorneys sought to waive instructions on all lesser included offenses. The State requested instructions on attempted second-degree murder and aggravated battery. The court concluded to give the instructions requested by the State. Faced with this prospect, Johnson then asked that instructions on all lesser included offenses be given, and the court acceded to this request. Johnson was convicted of aggravated battery and another offense not pertinent to our analysis.

Aggravated battery is not a category one lesser included offense of attempted murder because each crime contains an element not contained in the other. See generally Fla.Std. Jury Instr. (Crim.). However, the language of the attempted murder information was sufficient to charge aggravated battery with the use of a deadly weapon. See Bell v. State, 394 So.2d 570 (Fla. 5th DCA 1981). The evidence supported this charge. Therefore, in this case aggravated battery was a category two permissive lesser included offense of attempted first-degree murder. See generally Fla.Std. Jury Instr. (Crim.). The district court of appeal held that the State had a right to insist on instructions on category two permissive lesser included offenses over the defendant's objection and affirmed Johnson's conviction of aggravated battery.

In State v. Washington, 268 So.2d 901 (Fla.1972), a defendant charged with rape objected to instructions on any lesser included offenses. Notwithstanding, the jury was instructed on several lesser included offenses, including the permissive lesser included offense of assault with intent to commit rape. The defendant was found guilty of that crime. In upholding the conviction, this Court stated that the trial judge had properly instructed the jury on the necessarily lesser included offenses to rape. Likewise, in Gallo v. State, 491 So.2d 541 (Fla.1986), we upheld the conviction of what may have been two permissive lesser included offenses over the defendant's objection to the charging of any lesser included offenses. However, because of the wording of the certified question, we simply stated that the State was entitled to have jury instructions given on necessarily lesser included offenses even though the defendant had knowingly and intelligently requested that no such instructions be given. Prompted by the knowledge that this Court had never specifically stated that a defendant had no right to prevent the giving of instructions on applicable permissive lesser included offenses, the court below chose to certify the subject question.

In holding that the State had the right to insist on the giving of instructions on necessarily lesser included offenses, this Court in Gallo stated:

In order for the waiver of lesser included offense instructions to be effective, the state had to consent to the waiver just as it would have had to consent had Gallo desired to waive his right to a jury trial. See Fla.R.Crim.P. 3.260. Where, as here, the state fails to consent to the waiver, the court does not commit error when it denies the motion.

491 So.2d at 543. We can think of no reason why the rule should be different depending on the nature of the lesser included offense. Providing the charging document and the evidence support the charge, the conviction of a permissive lesser included offense carries the same weight as a conviction of a necessarily included offense. Thus, we hold that the State has a right to insist on the giving of instructions on permissive lesser included offenses over the defendant's objection. We note that our decision is consistent with Morrison v. State, 259 So.2d 502 (Fla. 3d DCA 1972), which held that the trial court is not precluded by the defendant's objection from charging the jury on a permissive lesser included offense. See also Courson v. State, 414 So.2d 207, 209-10 (Fla. 3d DCA 1982) ("While Courson may have wanted the jury to decide the case by either convicting him of the charge contained in the information or nothing at all, that option is not his.").

While continuing to maintain that Johnson was properly convicted of aggravated battery, the State also takes the position that the 1988 amendment to section 775.021(4), Florida Statutes (1987), had the effect of eliminating category two permissive...