Swindle v. State, 71--266
| Decision Date | 12 November 1971 |
| Docket Number | No. 71--266,71--266 |
| Parties | James Ray SWINDLE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Alfred Skaf, of Varon & Stahl, P.A., Hollywood, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Warren H. Petersen, Asst. Atty. Gen., Tampa, for appellee.
Appellant seeks review of a judgment and sentence entered against him following a jury verdict of guilty in response to a Bill of Information charging him with 'Possession of a Fire Bomb,' as prohibited by F.S. § 806.111, F.S.A.
Appellant argues that his motion for new trial should have been granted pursuant to F.S. § 920.05, F.S.A. 1 since the trial judge erroneously instructed the jury following closing arguments by counsel. We agree.
The first instruction which was erroneous reads as follows:
In Kinchen v. State, Fla.App.1970, 235 So.2d 749, the majority held that conspiracy to commit robbery is not an offense included under the charge of robbery; therefore, since appellant had been brought to trial upon an information charging him with the sole crime of robbery, the trial judge could not properly adjudicate the defendant guilty of conspiracy to commit robbery. 2 The adjudication and sentence were reversed with directions to discharge the appellant.
Therefore, since the single count information, 3 in the case sub judice, charged appellant with the sole possession of the fire bomb, the only logical conclusion to be reached is that giving the conspiracy instruction was clearly erroneous.
Appellant further argues, and we agree, that the additional instruction, to-wit:
'I further charge you that no organization or union has the lawful authority to give any person immunity from prosecution for doing unlawful acts.'
was erroneous and prejudicial since it was not germane to the theory of the prosecution nor was it advanced as a defense by appellant.
Mistake compounded is reversible error; therefore the judgment and sentence are vacated and the cause is remanded for a new trial. Appellant's other points on appeal now become moot.
Reversed.
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Palmer v. State
...627, 82 So. 50 (1919); State v. Brown, 118 So.2d 574, 580 (Fla.App.2d, 1960), cert. disc., 124 So.2d 481 (Fla.1960); Swindle v. State, 254 So.2d 811 (Fla.App.2d, 1971). It follows that the charge, being unsupported by evidence, should not have been given in this case. In Young, by contrast,......
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...give instructions which are confusing, contradictory, or misleading. Finch v. State, 116 Fla. 437, 156 So. 489 (1934); Swindle v. State, 254 So.2d 811 (Fla. 2d DCA 1971). It is not the province of the jury to determine what sentence will be imposed by selecting from a smorgasbord of lesser ......
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...give instructions which are confusing, contradictory, or misleading. Finch v. State, 116 Fla. 437, 156 So. 489 (1934); Swindle v. State, 254 So.2d 811 (Fla. 2d DCA 1971). A jury instruction pertaining to justifiable use of force in one's home given in a case in which the crime occurred in t......
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