Wheat v. State

• Decision Date: 30 June 1983
• Docket Number: No. AN-457,AN-457
• Parties: James WHEAT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1290

433 So.2d 1290

James WHEAT, Appellant, v. STATE of Florida, Appellee.

No. AN-457.

District Court of Appeal of Florida First District.

June 30, 1983.

Rehearing Denied July 29, 1983.

Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

Wheat appeals his conviction for the offense of robbery with a deadly weapon, urging that the trial court erred in refusing to give requested jury instructions on the lesser included offenses of robbery with a weapon, robbery without a weapon, and petit theft. We agree with his position, reverse the conviction, and remand the case for new trial.

In declining to give the requested instructions, the trial court explained that there was no evidence to support an instruction on any crime other than that charged. The state argues that the lower court's decision was justified, as the court was not obliged to "instruct on any lesser included offense as to which there is no evidence." Fla.R.Crim.P. 3.510(b). What the state and the lower court have apparently overlooked, however, is that in any case in which there is sufficient proof of the greater offense to go to the jury, there is inescapably proof of a lesser offense which is necessarily included within the offense charged. This conclusion is self-evident from a reading of the Florida Supreme Court's seminal decision on lesser included offenses in Brown v. State, 206 So.2d 377 (Fla.1968).

The facts recited in Brown reveal that the trial judge, whose order was there reviewed, fell into the same error as the court below by ruling that there was no proof to support a requested instruction that larceny was a lesser included offense to the charged offense of robbery. In reversing the conviction, the supreme court explained that any lesser offense which is an essential aspect of the major offense is a necessarily included offense because "the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence." Id. at 382. Thus, "in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny." Id.

In holding that an instruction was required as to lesser offenses necessarily included within the greater offense, the Brown court based its decision largely upon the provisions of Section 919.16, Florida Statutes (1965), which then mandated an instruction on "any offense which is necessarily included in the offense charged." In the court's view, the statute grants to the jury--not the judge--the discretion to convict a defendant of a necessarily lesser included offense, notwithstanding that the evidence is so strong as to satisfy the judge that the greater offense was committed.

Section 919.16 was subsequently repealed by Chapter 70-339, § 180, Laws of Florida. Nevertheless, the requirement that the trial judge instruct the jury on necessarily lesser offenses was imposed in rule-form by the Florida Supreme Court's adoption of Florida Rule of Criminal Procedure 1.510 (later renumbered 3.510), which went into effect January 1, 1968. See In re Florida Rules of Criminal Procedure, 196 So.2d 124 (Fla.1967). The rule was amended, effective October 1, 1981, see In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981), by deleting the provision that the trial court charge the jury on any offense involving either attempts or necessarily included offenses within the offense charged. The rule's amendment does not, however, absolve the trial judge from his duty to instruct on necessarily lesser included offenses. The stated purpose of the amendment to Rule 3.510 was simply to make it consistent with the newly adopted schedule of lesser included offenses which also went into effect on October 1, 1981. See In The Matter of The Use of Standard Jury Instructions, 431 So.2d 594, 597 (Fla.1981). In its order, the court observed that Rule 3.510 and its predecessor statute had been interpreted in Brown and in later cases to require instructions on attempts and on all lesser degrees of an offense, despite the absence of any evidence supporting the charges. Id. at 597. Attempting to remedy the confusion which had attended those opinions, the court requested the committee on standard jury instructions in criminal cases to recommend a table of lesser included offenses, as well as modifications of the pertinent rules. While approving the recommended schedule of lesser included offenses, the court admonished that it did "not view these changes as invasions by the trial judge into the province of the jury ...." It further observed that the approved changes "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 (e.s.).

Thus, it clearly appears from the above comments that a trial judge is required to give instructions to the jury on all necessarily included lesser offenses to that charged, regardless of the degree of proof supporting the conviction for the higher offense. Indeed, the jury pardon concept, approved in Brown, of allowing all necessarily included offenses to go to the jury, has been reiterated and endorsed by many later opinions of the Florida Supreme Court, including State v. Terry, 336 So.2d 65 (Fla.1976); Lomax v. State, 345 So.2d 719 (Fla.1977); State v. Abreau, 363 So.2d 1063 (Fla.1978), and, most recently, State v. Bruns, 429 So.2d 307 (Fla., 1983). Bruns, relying on Lomax, stated: "Whether the evidence is susceptible of inference by the jury that the defendant is guilty of a lesser offense than that charged is a critical evidentiary matter exclusively within the province of the jury .... Fundamental trial fairness requires that a defendant being tried for robbery should be permitted to have an instruction on a lesser-included offense upon timely request." 429 So.2d at 309-10.

In determining whether to give an instruction on a requested lesser offense, a trial judge should carefully consult the schedule of lesser included offenses contained in the Florida Standard Jury Instructions in Criminal Cases. The schedule is "designed to be as complete a listing as possible for each criminal offense of the possible category 3 [the category in which Brown placed necessarily included offenses] and category 4 lesser included offenses, ...." Id. at 597. It is, moreover, "an authoritative compilation upon which a trial judge should be able to confidently rely." Id. at 597. Offenses necessarily included in the offense charged were regrouped in the schedule...