State v. Terry

Decision Date25 February 1976
Docket NumberNo. 46370,46370
Citation336 So.2d 65
PartiesSTATE of Florida, Petitioner, v. Gwendolyn TERRY, Respondent.
CourtFlorida Supreme Court

Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for petitioner.

Louis O. Frost, Jr., Public Defender, and James O. Brecher and Steven E. Rohan, Asst. Public Defenders, Jacksonville, for respondent.

SIEGENDORF, ARDEN M., Circuit Judge:

By petition for certiorari, we have for review a decision of the District Court of Appeal, First District, (Terry v. State, 302 So.2d 142). The District Court, finding two issues to be of great public interest, certified the cause to the Supreme Court pursuant to Article V, 3(b) 3, Florida Constitution.

The first issue certified concerned the trial court's refusal to instruct the jury on the applicable penalties as provided by Rule 3.390(a), F.R.Cr.P. The District Court held that it was error to refuse Respondent's request that the jury be so instructed.

Subsequent to filing of the instant proceeding, but prior to oral argument, this Court decided Johnson v. State, 308 So.2d 38 (Fla.1975). Johnson held that Rule 3.390(a), Supra, was discretionary, not mandatory, and that the trial judge was not obliged to include in his instructions the penalty for the offense charged. 1 That rule clearly applies to the case Sub judice. Accordingly, we pretermit further discussion of this issue and remand same to the District Court for further proceedings consistent herewith.

The second question certified concerns the refusal of the trial court to instruct the jury as to certain lesser-included offenses. See Rule 3.510, F.R.Cr.P.

Respondent was charged by information with the crime of assault with the intent to commit murder in the first degree. The jury found Respondent guilty of aggravated assault after considering her testimony that she shot the victim with a pistol in self defense. The trial judge instructed the jury on the offenses of assault with intent to commit murder in the first degree, assault with intent to commit murder in the second degree, assault with intent to commit manslaughter, aggravated battery, and aggravated assault, but refused to instruct the jury on assault and battery, and bare assault. The District Court affirmed the trial court in this regard, holding that under the evidence presented, it was not error to refuse to so instruct the jury.

Respondent contends that under Brown v. State, 206 So.2d 377 (Fla.1968) and its progency, 2 the failure of the trial court in the instant case to instruct the jury on assault and battery, and bare assault, is reversible error.

In Brown v. State, supra, Justice Thornal presented an historial analysis of lesser-included offense situations and a definitive statement of applicable rules. Lesser-included offenses were classified into four distinct categories: 1) crimes divisible into degrees ; 2) attempts to commit offenses; 3) offenses necessarily included in the offense charged; and 4) offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Addressing himself to the third category, Justice Thornal stated that:

'This category also stems from (Fla.Stat.) § 919.16, which requires an instruction on 'any offense which is necessarily included in the offense charged'. The statutory mandate here requires that the lesser offense be Necessarily included in the major offense Charged by the accusatory pleading. This simply means that the lesser offense must be an essential aspect of the major offense. In other words, the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence. For example, in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny. Arnold v. State, 83 So.2d 105 (Fla.1955). It is legally impossible to prove a robbery without also proving a larceny. In such a situation, § 919.16, requires the instruction on the lesser offense, even though the proofs might satisfy the trial judge that the more serious offense was committed. This is so because Under the quoted statute it is not within his province to make this decision. Section 919.16, grants to the jury the discretion to convict of a necessarily included lesser offense, . . .'

Just as it is legally impossible to prove a robbery without also proving a larceny, so too it is legally impossible to prove an assault with intent to commit murder in the first degree without also proving a bare assault. Therefore, if the trial judge in the case Sub judice found sufficient evidence to instruct the jury on the major offense of assault with intent to commit murder in the first degree, he should have instructed the jury on the Necessarily included lesser offense of bare assault.

Petitioner cites Rafuse v. State, 209 So.2d 260 (Fla.App.1st 1968) for the proposition that the trial court properly declined Respondent's request that the jury be instructed on the offenses of assault and battery, and bare assault. In Rafuse, the First District Court of Appeal relied upon Tanner v. State, 197 So.2d 842 (Fla.App.1st 1967). The rationale for Rafuse and Tanner is that a judge is not required to instruct on lesser-included offenses if he is convinced the major offense has been proven. In Hand v. State, 199 So.2d 100 (Fla.1967), this Court specifically rejected this doctrine.

'There is authority supporting the proposition that a trial court is not in error in refusing to instruct the jury on the lesser included offense of larceny when the court is of the opinion the evidence adduced is not reasonably susceptible of inference by the jury that the articles involved were taken from the victim without force, violence, assault, or putting in fear. See, for example, Brown v. State, Fla.App., 191 So.2d 296, and Silver v. State, Fla.App., 174 So.2d 91. We do not, however, agree with this view, although it has been advanced and even prevailed in appellate decisions in our state. The giving of such instruction should not hinge upon whether the trial court believes the evidence is susceptible of inference by the jury that the defendant is guilty of the lesser offense and not of the greater offense charged. In our opinion such judicial determination at trial level obviously takes a most critical evidentiary matter from the proper province of the jury and vests it improperly as a matter of law with the trial judge. Would it be, we ask hypothetically, consistent with trial fairness to allow the state to charge a person with robbery and in the event of acquittal bring him back into court for another trial on a subsequent charge of larceny which stemmed solely from the commission of the robbery offense originally charged? We answer in the negative. Such a defendant being tried for robbery should upon timely request be permitted to have an instruction on larceny, a necessarily included element of robbery both in statutory definition and in general law, given to the jury for its consideration.'

Recognizing the confusion surrounding Brown and its progeny, Justice Dekle, in Gilford v. State of Florida, 313 So.2d 729 (Fla.1975), attempted to clarify the entire subject. In a category three-type necessarily lesser-included offense, proof of the lesser-included offense inheres in the Evidence of the greater offense. Where proof of the lesser offense may nor may not be included in the offense charged, as in a category four-type lesser-included offense, then the trial judge should instruct the jury on the lesser offense if the allegata and probata are present, with the one exception explained in Gilford which is inapplicable to the instant case. In other words, in a category four-type lesser-included offense, a judge should instruct the jury on a lesser-included offense only after making a determination that such lesser-included offense has an evidentiary basis in the accusatory pleading And the proof tendered in support thereof. As explained by Justice Thornal in Brown,

'In the first three categories, the offenses of which the defendant may be convicted can be determined from the information or indictment and the cited statutes. In category four situations the lesser offense must be comprehended by the allegations of the information and supported by the proof.' 206 So.2d at 383.

Sub judice, proof of the greater offense of assault with intent to commit murder in the first degree was also proof of the Necessarily included lesser offense of bare assault. Accordingly, an instruction on bare assault should have been given. However, proof of the greater offense of assault with intent to commit murder in the first degree is not always proof of assault and battery. Thus, assault and battery comes within the ambit of Brown's category four.

The crime of assault and battery requires both an assault and a battery. Since the crime which the Respondent is charged with, to-wit: assault with the intent to commit murder in the first degree, does not require proof of a battery, the offense of assault and battery is not a necessarily included lesser offense. But when, as in the case at bar, the accused is charged with not only assaulting the victim with the intent to commit murder in the first degree, but also of causing some actual physical contact with the victim, then the greater crime of assault with intent to commit murder in the first degree includes the lesser crime of assault and battery. Since the Information charged the Respondent with shooting the victim, And the Evidence revealed that the victim was shot with a pistol, it is apparent that the major crime for which the Respondent was charged did include the lesser offense of assault and battery. We note that the jury was instructed on both aggravated assault, and aggravated battery. Hence, the refusal of the trial...

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