Stevens v. State

• Decision Date: 01 November 1977
• Docket Number: Nos. 76-733,76-1272 and 76-540,s. 76-733
• Citation: 351 So.2d 1077
• Parties: Curtis STEVENS and Aldrian Cook, Appellants, v. The STATE of Florida, Appellee. Curtis STEVENS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1077

351 So.2d 1077

Curtis STEVENS and Aldrian Cook, Appellants, v. The STATE of Florida, Appellee.

Curtis STEVENS, Appellant, v. The STATE of Florida, Appellee.

Nos. 76-733, 76-1272 and 76-540.

District Court of Appeal of Florida, Third District.

Nov. 1, 1977.

Rehearing Denied Dec. 7, 1977.

Bennett Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for Stevens.

Stone, Sostchin & Gonzalez and Gisela Cardone Dienstag, Miami, for Cook.

Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.

Before HENDRY, C. J., and NATHAN and KEHOE, JJ.

PER CURIAM.

Curtis Stevens and Aldrian Cook were charged by information with conspiracy to commit robbery, attempted murder, robbery, and unlawful possession of a firearm while in the commission of a robbery. They pled not guilty and were tried by jury. Cook was found guilty, convicted and sentenced on all four counts. Stevens was found not guilty on the charge of attempted murder, but convicted and sentenced on the remaining three counts. In separate proceedings, an order was entered revoking Stevens' probation. These three consolidated cases are a direct appeal by Stevens and one by Cook from their judgments of conviction and sentences, and an appeal by Stevens from the order of revocation of probation.

The action arises from the 1975 robbery of a Publix supermarket. The record reflects that shortly after the robbery, the defendants were apprehended following an exchange of gun shots with the police in an attempt to get away. At trial, the State presented extensive eyewitness testimony linking both defendants to the crimes with which they were charged.

In appeal no. 76-1272, Aldrian Cook raises the point that the trial court erred in denying his request and refusing to instruct the jury on the lesser included offenses of robbery in violation of Rule 3.510, Florida Rules of Criminal Procedure. This point is well taken. The rule provides in pertinent part that upon an information upon which the defendant is to be tried for any offense, the jurors may convict the defendant of any offense which is necessarily included in the offense charged; and "(t)he court shall charge the jury in this regard." (emphasis added).

In the case of Brown v. State, 206 So.2d 377 (Fla.1968), the Florida Supreme Court set out the four categories of lesser included offenses. The first three categories are (1) crimes divisible into degrees; (2) attempts to commit offenses; and (3) offenses necessarily included in the offense charged. A charge to the jury regarding the lesser offense in these three categories is mandatory. In the fourth category are the offenses which may or may not be included in the offense charged, depending upon the allegations of the accusatory pleading and the evidence.

In its recent decision in the case of Lomax v. State, 345 So.2d 719, 721, the Florida Supreme Court held that,

". . . when failure to instruct on a lesser-included offense constitutes error, the harmless error doctrine will not be invoked. Any such failure constitutes prejudicial error and is thus per se reversible."

Lomax was cited with approval by this court in Abreau v. State, 347 So.2d 819 (Fla.3d DCA 1977), wherein it was held that a trial judge is under a mandatory duty to instruct a jury on all lesser offenses required by Fla.R.Crim.P. 3.510, 3.490 as interpreted by Brown v. State, supra, when requested by either the state or the defense. Failure to give such an instruction upon request of the defense will compel a reversal of any conviction obtained thereafter without regard to the harmless error doctrine. Abreau, supra, 821-822.

As opined in Clark v. State, 301 So.2d 456, 457-458 (Fla.3d DCA 1974), there is a "need for criminal trial judges to apply the mandatory language of Rule 3.510 in a neutral and mechanical manner." We agree, and find that the trial judge erred in failing to instruct the jury on the lesser included offenses of robbery as requested by Cook's counsel. See Hand v. State, 199 So.2d 100 (Fla.1967); Miles v. State, 258 So.2d 333 (Fla.3d DCA 1972); State v. Terry, 336 So.2d 65 (Fla.1976). Therefore, we reverse Cook's conviction and sentence on the robbery count, and remand to the trial court for a new trial on that count.

The remaining points raised by Cook in his brief and amended brief have been carefully reviewed. We find that none of them demonstrates reversible error. The convictions and sentences on the other three counts are affirmed.

We next address case no. 76-733, Stevens' direct appeal from the judgments of conviction and sentences. He contends that the trial court erred in denying a motion to strike testimony as to an alleged inculpatory statement made by Stevens while in custody. In support of this point, he urges that (1) the prosecutor failed to comply with Rule 3.220, Fla.R.Crim.P., relating to discovery; (2) the court failed to inquire into the circumstances surrounding the prosecutor's non-compliance, and further failed to determine that no prejudice was caused thereby; and (3) the prosecutor failed to establish any predicate as to the admissibility of the statement, thereby violating defendant's constitutional rights.

The record reflects that the following colloquy took place during the State's redirect examination of the arresting officer:

"Q Was Stevens struck by any bullets that you fired?

A I am not sure if he was or wasn't.

Q How about after he was taken into custody?

A Well, Stevens advised me personally that he was not - - - STEVENS' COUNSEL: Objection. There has been no predicate as to this and I move for a sidebar at this time.

THE COURT: Overruled. Sidebar denied.

A Stevens advised me when I had him in the holding cell that he had not been shot by me. I thought that perhaps he fell down when I fired a second shot. He might have been shot but he said he cut his leg going over the fence. " (Emphasis supplied.)

At the conclusion of the officer's testimony, defense counsel renewed his prior objection to the testimony as to the defendant's statement on the grounds that the officer stated that Stevens was in custody at the time he made the alleged admission, and that no predicate was laid by the State to establish that Stevens had been informed of his Miranda rights; defense counsel further asserted that the State had never provided the defendant with the oral admission to the officer pursuant to a discovery demand under Rule 3.220(a)(1) (iii), for:

"Any written or recorded statements and the substance of any oral statements made by the Defendant and known to the prosecutor together with the name and address of each witness to the statement."

Based upon those grounds, Stevens' counsel moved to strike the admission "from the jury's mind" as well as "from the record," and moved for a mistrial which was denied.

In our opinion, under the facts presented in the record of this case, there was no necessity for a predicate to be laid before the officer could testify to the defendant's statement. The statement that after Stevens was...