State v. Terry
Decision Date | 25 February 1976 |
Docket Number | No. 46370,46370 |
Citation | 336 So.2d 65 |
Parties | STATE of Florida, Petitioner, v. Gwendolyn TERRY, Respondent. |
Court | Florida 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.
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 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:
and battery, and bare assault, is reversible error.
'This category also stems from (Fla.Stat.) § 919.16, which requires an instruction on
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.
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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