Wimberly v. State, BD-470

Decision Date02 October 1985
Docket NumberNo. BD-470,BD-470
Citation476 So.2d 272,10 Fla. L. Weekly 2288
Parties10 Fla. L. Weekly 2288 Jeffrey WIMBERLY, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Henri C. Cawthon, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant was charged by information with unlawful possession of contraband in a state correctional institution, two counts of battery of a law enforcement officer, and resisting an officer with violence, Sections 784.07, 843.01, and 944.47, Florida Statutes (1981). He was convicted of possession of contraband in a state correctional institution, one count of battery of a law enforcement officer, and resisting an officer without violence, a lesser included offense to the charge of resisting an officer with violence. 1 Appellant contends that the trial judge committed reversible error by refusing to instruct the jury on the lesser included offense of simple battery which, he asserts, is a necessarily lesser included offense to battery of a law enforcement officer. Appellant also claims that his conviction and sentence for resisting arrest without violence is prohibited by the double jeopardy clauses of the federal and state constitutions since, appellant maintains, this offense is the "same" for double jeopardy purposes as the offense of battery of a law enforcement officer. We reverse as to Point I, but certify the question as being of great public importance. Finding no merit to appellant's second point on appeal, we affirm on that issue.

The testimony at trial indicated that while incarcerated at Union Correctional Institution, appellant fled from the control of two correctional officers, Martin Dockery and Terry Lee Krueger, who were conducting a search of appellant at the time. Officer Krueger testified that he saw appellant throw a metal object into the cell of another inmate, Samuel F. Gilbert. Gilbert testified that he recovered a knife from his cell, which Officer Krueger later identified at trial as the object he saw appellant throw into the cell. Both officers testified that appellant struck them in the mouth while he was being pursued and eventually apprehended.

In his first point on appeal, appellant contends that the trial judge was required to instruct the jury on simple battery as a necessarily lesser included offense of battery of a law enforcement officer, pursuant to State v. Bruns, 429 So.2d 307 (Fla.1983), and State v. Abreau, 363 So.2d 1063 (Fla.1978). Appellee, on the other hand, argues that the language of the rule upon which appellant relies, Rule 3.510, Florida Rules of Criminal Procedure, 2 does not require such an instruction, even for a necessarily lesser included offense, where no evidence exists in the record which would support a conviction for the necessarily lesser included offense. 3 We find that this issue was decided contrary to appellee in Wheat v. State, 433 So.2d 1290, 1292 (Fla. 1st DCA 1983), pet. for rev. den., 444 So.2d 418 (Fla.1984), where the court held that a trial judge is required to instruct the jury on all necessarily lesser included offenses to the offense charged, regardless of the degree of proof supporting conviction for the greater offense. Accord, Cannon v. State, 456 So.2d 513, 515 (Fla. 5th DCA 1984); Flint v. State, 463 So.2d 554 (Fla. 2d DCA 1985). Wheat, Cannon and Flint all interpret the language found in Florida Rule of Criminal Procedure 3.510(b) that "... [t]he [trial] judge shall not instruct [the jury] on any lesser included offense as to which there is no evidence" as applying only to category 2 lesser included offenses, rather than to category 1 necessarily lesser included offenses. This interpretation is based on In Re: Florida Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 597 (Fla.1981), where the Supreme Court stated that the above-noted language of revised rule 3.510 would "eliminate the need to give a requested lesser offense [instruction], not necessarily included in the charged offense, when there is a total lack of evidence of the lesser offense." (emphasis supplied). This requirement that a trial judge give a requested instruction on necessarily lesser included offenses is bottomed upon a recognition of the jury's right to exercise its "pardon power," State v. Baker, 456 So.2d 419, 422 (Fla.1984); Buford v. State, 473 So.2d 795 (Fla. 5th DCA, 1985). Consequently, we reverse appellant's conviction for battery of a law enforcement officer, and remand for a new trial on that offense.

Notwithstanding our conclusion that reversal is mandated by prior convictions, we find, as pointed out by the Second District Court of Appeal in Flint, that rule 3.510(b) is ambiguous and that the state's interpretation of the rule as not requiring a jury instruction even on a necessarily lesser included offense, where no reasonable view of the evidence would support a verdict of conviction on this offense is not unreasonable. Cf., Cannon, supra, at 516 (Sharp, J., concurring in part and dissenting in part); Foster v. State, 448 So.2d 1239, 1240 (Fla. 5th DCA 1983) (Cowart, Jr., specially concurring). Moreover, the Florida Supreme Court has offered potentially conflicting language on the issue, Cf., In Re: Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 597 (Fla.1981), with Bell v. State, 437 So.2d 1057, 1060-61 (Fla.1983) (court characterized sale, possession of a controlled substance as category 1 (necessarily) lesser included offenses to trafficking in controlled substances; court held in dicta that "... the [trial] judge must instruct [the jury] on the lesser included offense of sale and possession if evidence exists of these offenses." (emphasis supplied).) See also, Green v. State, 475 So.2d 235, 237 (Fla. 1985). The second district itself has refused to hold that a trial judge committed reversible error in not instructing a jury on the offense of petit theft in a grand theft prosecution when the undisputed evidence at that trial indicated that the value of the stolen property was $250.96, even though petit theft is a necessarily lesser included offense of grand theft, Watson v. State, 439 So.2d 1050 (Fla. 2d DCA 1983). Accordingly, we certify the following question as being of great public importance, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

IF THE EVIDENCE AT TRIAL IS SUFFICIENT TO CONVICT OF A NECESSARILY LESSER INCLUDED OFFENSE, AND THE SAME EVIDENCE ALSO INCONTROVERTIBLY SHOWS THAT THE NECESSARILY LESSER INCLUDED OFFENSE COULD NOT HAVE BEEN COMMITTED WITHOUT ALSO COMMITTING THE GREATER CHARGED OFFENSE, DOES RULE 3.510(b), FLORIDA RULES OF CRIMINAL PROCEDURE, REQUIRE THE TRIAL...

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7 cases
  • Thompson v. State, s. 84-1460
    • United States
    • Florida District Court of Appeals
    • 20 Febrero 1986
    ...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. St......
  • State v. Wimberly
    • United States
    • Florida Supreme Court
    • 11 Diciembre 1986
    ...D. Presnell, Asst. Public Defenders, Tallahassee, for respondent. OVERTON, Justice. This is a petition to review Wimberly v. State, 476 So.2d 272 (Fla. 1st DCA 1985), in which the district court held that, in a prosecution for battery of a law enforcement officer, the trial court erred in f......
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    • Florida District Court of Appeals
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  • Chow v. Chak Yam Chau, Philippe Miami, LLC
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 17 Noviembre 2015
    ... ... ; false advertising; misappropriation of trade secrets; and unfair competition under federal, state, and common law. Id. Some defendants counterclaimed for defamation and sought to deregister ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Certifying questions to the Florida Supreme Court: what's so important?
    • United States
    • Florida Bar Journal Vol. 76 No. 5, May 2002
    • 1 Mayo 2002
    ...514 So. 2d 75, 75 (Fla. 1st DCA 1987) (certifying question "[i]n view of conflicting decisions on this point of law"); Wimberly v. State, 476 So. 2d 272, 274 (Fla. 1st D.C.A. 1985) (certifying question based on acknowledged ambiguity of criminal rule and Florida Supreme Court's "potentially......

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