Wilson v. State, 94-2204
| Decision Date | 20 December 1995 |
| Docket Number | No. 94-2204,94-2204 |
| Citation | 668 So.2d 998 |
| Parties | 21 Fla. L. Weekly D37 Milo WILSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for Broward County; Mark A. Speiser, Judge.
Richard L. Jorandby, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
Milo Wilson timely appeals from a final judgment adjudicating him guilty of grand theft. Two points are raised on appeal, both of which require reversal.
Wilson initially appeals the trial court's extemporaneous reasonable doubt instruction to the jury pool as constituting fundamental error. Prior to empaneling the jury, the court discussed certain aspects of a trial with the jury pool. Within that discussion the court discussed certain "cardinal rules" that apply to criminal trials. The third of those rules was that the jury should not demand proof beyond all doubt or complete certainty before finding the appellant guilty.
Factually, this case is controlled by this court's decision in Jones v. State, 656 So.2d 489 (Fla. 4th DCA 1995). In Jones, the trial court gave similar extemporaneous instructions to the jury pool prior to voir dire. This court found the instructions to be fundamental error, as it deprived the appellant of his right to rely on the correct standard of reasonable doubt.
We have recently followed the Jones decision in Rayfield v. State, 664 So.2d 6 (Fla. 4th DCA 1995). In Rayfield, instructions similar to those in Jones were given to the jury pool. This court reversed, citing the "all-but-identical preliminary instructions on reasonable doubt" as grounds for reversal.
In the case at bar, the trial court gave similar preliminary instructions to the jury pool. Again, the judge discussed "cardinal rules," the third being the state does not have to convince the jury to an absolute certainty of the defendant's guilt. These instructions, like those in Jones, were tantamount to telling the jury that it could base a guilty verdict on a probability of guilt so long as it was a remarkably strong probability. This kind of minimization of the reasonable doubt standard violates the due process clause of the state and federal constitutions. See Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). We again find such instruction to be fundamental error.
Wilson also appeals the trial court's decision to instruct the jury on grand theft as a lesser included offense of the charged offenses of armed robbery. The charging document failed to allege any value of the property taken. In Pierce, this court clearly held that in order for the state to preserve its right to a lesser included conviction for grand theft, the information must contain an allegation that sufficiently states the value of the property taken. Pierce v. State, 641 So.2d 439 (Fla. 4th DCA 1994).
The information charged Wilson with unlawfully taking "money and jewelry" with the intent to permanently deprive. Like the facts in Pierce, the charging statement did not allege the value of the property taken. The state's failure to include such values precludes a conviction for grand theft.
We reverse for a new trial, but because the jury did not find Wilson guilty of armed robbery, he may be tried only for petit theft.
REVERSED.
ON MOTION FOR CERTIFICATION OF QUESTION AND STAY OF MANDATE
The State of Florida has moved this court to stay the mandate from our December 20, 1995, opinion and certify the issue in this case as one of great public importance.
We grant the stay and certify the question as being of great public importance; although we do not adopt the state's...
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