Thompson v. State, s. 84-1460

• Decision Date: 20 February 1986
• Docket Number: Nos. 84-1460,84-1523,s. 84-1460
• Parties: 11 Fla. L. Weekly 485 Alfredo THOMPSON and Howard Coleman, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 311

487 So.2d 311

11 Fla. L. Weekly 485

Alfredo THOMPSON and Howard Coleman, Appellants, v. STATE of Florida, Appellee.

Nos. 84-1460, 84-1523.

District Court of Appeal of Florida,

Fifth District.

Feb. 20, 1986.

Rehearing Denied April 18, 1986.

James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellants.

Jim Smith, Atty. Gen., Tallahassee, and Gary W. Tinsley, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Chief Judge.

The defendants were charged with robbery while carrying a firearm or other deadly weapon (§ 812.13(2)(a), Fla.Stat.). At trial, at the close of the evidence, the defendants requested the trial court to instruct the jury on certain lesser included offenses including the offense of robbery without a weapon or firearm (§ 812.13(2)(c), Fla.Stat.). The trial court refused this request because in its opinion the evidence adduced showed conclusively and without contradiction that if the defendants committed the robbery in question at all it was committed with a firearm and there was no evidence that it was committed without a weapon or firearm. The defendants made no request for a jury instruction as to the necessarily lesser included offense of robbery while carrying a weapon (§ 812.13(2)(b), Fla.Stat.) and made no objection to the failure of the trial court to submit a jury verdict alternative as to that offense. The defendants were convicted as charged. On appeal they argue that it was reversible error for the trial court to refuse to instruct on the necessarily lesser included offense of robbery without a weapon or firearm.

As a matter of law, robbery without a weapon or firearm under subsection (c) of the statute is a necessarily lesser included offense of robbery while carrying a firearm or other deadly weapon, under subsection (a). Having requested it, the defendants were entitled to an instruction on this necessarily lesser included offense, although the trial court found that there was a total lack of evidence to support a jury finding that the robbery in question was committed without a weapon or firearm. See Brown v. State, 206 So.2d 377 (Fla.1968); Hand v. State, 199 So.2d 100 (Fla.1967).

Florida Rule of Criminal Procedure 3.510(b), as amended in 1981, ¹ provides that the trial judge shall not instruct on permissive lesser included offenses (i.e., category two of the present Schedule of Lesser Included Offenses, Florida Standard Jury Instructions in Criminal Cases (1981 ed.)), as to which there is no evidence. It does not alter the Brown rule in regard to the requirement to instruct on necessarily lesser included offenses (i.e., category one of the Schedule of Lesser Included Offenses). See Matter of Use By Trial of Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 597 (Fla.1981); ² Wimberly v. State, 476 So.2d 272 (Fla. 1st DCA 1985); Flint v. State, 463 So.2d 554 (Fla. 2d DCA 1985); Williams v. State, 461 So.2d 1010 (Fla. 5th DCA 1984); Cannon v. State, 456 So.2d 513 (Fla. 5th DCA 1984), review denied, 462 So.2d 1108 (Fla.1985); Foster v. State, 448 So.2d 1239 (Fla. 5th DCA 1984); Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), review denied, 444 So.2d 418 (Fla.1984); but see Louttit v. State, 467 So.2d 756 (Fla. 3d DCA), review denied, 480 So.2d 1294 (Fla.1985).

Robbery while carrying a weapon, under subsection (b) of the statute, is the next immediate necessarily lesser included offense (one step removed) of robbery while carrying a firearm or other deadly weapon. Reddick v. State, 394 So.2d 417 (Fla.1981). State v. Abreau, 363 So.2d 1063 (Fla.1978), holds that where the omitted instruction relates to an offense two or more steps removed from the offense charged, appellate courts may properly find such error to be harmless under Delaine v. State, 262 So.2d 655 (Fla.1972). Nevertheless, Abreau makes it clear that the Delaine rule was meant to apply only where the trial court has given instructions on the next immediate lesser included offense, which was not done in the instant case. Therefore, under Abreau, the Delaine rule does not apply and the error in this case may not be considered harmless. Accordingly, this case is reversed and remanded for a new trial.

REVERSED and REMANDED.

UPCHURCH, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge, dissenting:

The point of law in this case should be considered further by this court and the Florida Supreme Court.

Brown v. State, 206 So.2d 377 (Fla.1968), as well as Hand v. State, 199 So.2d 100 (Fla.1967), held that the trial judge must give a jury instruction permitting a verdict alternative as to all necessarily lesser included offenses when it was requested by defense counsel without regard to the trial judge's view of the sufficiency of the evidence. This holding had two bases. (1) the statutory requirement then contained in section 919.16, Florida Statutes (1967), and (2) the thought that "it is legally impossible to prove a robbery without also proving a larceny."

Both Hand and Brown related to criminal convictions occurring after the adoption on November 6, 1956, of Article V, § 3, Florida Constitution, which authorized the supreme court to adopt court rules governing practice and procedure but before January 1, 1968, the effective date of the first Florida Rules of Criminal Procedure. Those rules adopted the substance of many statutory provisions including section 919.16, Florida Statutes, which was adopted nearly verbatim as Florida Rule of Criminal Procedure 3.510, and read in part as follows:

... the jury ... may convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.

After its substance was adopted as a criminal procedural rule, section 919.16, Florida Statutes, was repealed in 1970 by Chapter 70-339, Laws of Florida. In September, 1981, Rule 3.510(b) was amended, effective October 1, 1981, and now reads in relevant part:

Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:

* * *

* * *

(b) any offense which as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence. (emphasis supplied)

The rule as amended is patently grammatically ambiguous. ¹ However, this and other district courts of appeal have held that Florida Rule of Criminal Procedure 3.510(b), as amended in 1981, authorizes a trial court to not instruct on permissible lesser included offenses ² when there is no supporting evidence, but that this authority to not instruct does not relate to necessarily lesser included offenses. ³ See Cannon v. State, 456 So.2d 513 (Fla. 5th DCA 1984), rev. den., 462 So.2d 1108 (Fla.1985); Foster v. State, 448 So.2d 1239 (Fla. 5th DCA 1984); Flint v. State, 463 So.2d 554 (Fla. 2d DCA 1985); Wheat v. State, 433 So.2d 1290 (Fla. 1st DCA 1983), rev. den., 444 So.2d 418 (Fla.1984).

Wheat v. State, supra, was the first case to consider the issue of whether under Rule 3.510(b), as amended in 1981, an instruction on every necessarily lesser included offense is still required although the trial judge determines that there is no evidence supporting the view that the accused is guilty of a particular necessarily lesser included offense rather than guilty of a greater offense also charged. The majority in Wheat gave two reasons for its position that under present Rule 3.510(b) it is still reversible error for a trial court to not instruct on all necessarily lesser included offenses when requested by defense counsel. One reason given was certain language contained in the supreme court's April, 1981, order and opinion, ⁴ which approved a schedule or table of lesser included offenses for use as part of the Florida Standard Jury Instructions in Criminal Cases and directed the appropriate rules committees to submit proposed revisions to Rules 3.510 and 3.490 by June 1, 1981. In the April, 1981, order, after referring to the fact that jury confusion had resulted from the present rules which required instructions to the jury for offenses for which there was no support in the evidence, the supreme court referred to "the instant changes which will eliminate the need to give a requested lesser offense, not necessarily included in the charged offense, when there is a total lack of evidence of the lesser offense." Id at 597. (emphasis supplied) In the emphasized phrase, which is relied upon in Wheat, the words "the instant changes" may have referred to the adoption of the schedule of lesser included offenses. In any event these words, written in April, 1981, cannot be considered an authoritative interpretation or limitation on the meaning of the language in the amendment to Rule 3.510 which was later written and proposed by the rules committees and not adopted by the supreme court until September, 1981.

Ever since Hand and Brown were decided in 1967 and 1968, it has been plain and clear that a trial judge was required to give a jury instruction on every necessarily (category three) lesser included offense, whether or not the trial judge found such offense was supported by evidence, but that a jury instruction was not required on possible or permissive (category four) lesser included offenses unless the information charged and the evidence supported such an offense. ⁵ Prior to the 1981 amendment, it was also clear that Rule 3.510, which required a jury instruction without regard to the evidence, related solely to attempts and to necessarily (category three) lesser included offenses and did not relate to possible or permissive (category four) lesser included offenses. Therefore, the supreme court's statement in the April, 1981, order and opinion, In re Standard Jury Instructions in Criminal Cases, 431 So.2d...