State v. Washington
| Decision Date | 10 May 1972 |
| Docket Number | No. 41256,41256 |
| Citation | 268 So.2d 901 |
| Parties | STATE of Florida, Petitioner, v. Robert J. WASHINGTON, Respondent. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for petitioner.
Daniel R. Vaughen, DeLand, for respondent.
We have for review on petition for writ of certiorari a decision of the District Court of Appeal, First District, reported at 247 So.2d 743. We have jurisdiction under Article V, Section 4(2) of the Florida Constitution, F.S.A. and Rule 4.5(c)(6) of the Florida Appellate Rules, 32 F.S.A., because that decision conflicts with Brown v. State, Fla. 1968, 206 So.2d 377.
Respondent was indicted and tried for the crime of rape. At a conference on jury instructions held during the trial, he objected to the giving of any instructions on lesser included offenses. The trial judge informed Respondent that the objection would not be waived if he failed to make it in open court. The jury was instructed on the lesser included offenses of assault with intent to commit rape, assault and battery, and simple assault. He was convicted of assault with intent to commit rape. The District Court of Appeal, First District, reversed. That court held that a defendant may object to the giving of lesser included offense charges and may insist that he be tried only for the crimes set forth in the charging instrument.
The rule established by the District Court comports with logic and fairness. By not objecting to a lesser included offense instruction, a defendant would waive any contention that he was not given notice that the jury could convict him for lesser included offenses. When he did object, the State would be forced to have its case stand or fall on whether the jury found the defendant guilty of the crimes charged in the indictment or information. However, although it may have set forth the better rule, the District Court's holding is not permitted under F.S. Section 919.16, F.S.A.* and our interpretation of that statute in Brown v. State, supra.
The statute provides:
(Emphasis supplied.)
In Brown we held the 'shall' mandatory, saying, 'a trial judge is required to instruct on necessarily included offenses because the law, particularly § 919.16, requires it.' Brown v. State, supra, at 382. The trial judge in the instant case, therefore, properly instructed the jury as to lesser included offenses necessarily included in the crime of rape, and the jury acted within its province in returning a verdict of guilty of a lesser included offense.
In addition to finding the trial court erroneously...
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...order to properly instruct a jury and conduct a trial under the requirements set forth by the Supreme Court of Florida in State v. Washington, 268 So.2d 901 (Fla.1972).' In the case of State v. Sheppard, the questions certified 'Whether the provisions of Florida Statutes 782.04, 775.082 and......
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...(Fla.App.1st 1975) and Davis v. State, 319 So.2d 611 (Fla.App.3rd 1975).2 E.g., Brown v. State, 245 So.2d 68 (Fla.1971); State v. Washington, 268 So.2d 901 (Fla.1972); State v. Anderson, 270 So.2d 353 (Fla.1972); Rayner v. State, 273 So.2d 759 (Fla.1973); State v. Wilson, 276 So.2d 45 (Fla.......
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