JOHNELL JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court erred by refusing to instruct the jury on the lesser included offense of theft when the evidence did not establish the value of the property taken was $100 or more.
Appellant was charged with armed robbery and convicted of the lesser included offense of robbery. The trial court refused to instruct the jury on thef…
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OTT, Chief Judge.
Appellant was charged with armed robbery and found guilty of the lesser included offense of robbery. The trial court refused appellant’s request for a jury instruction on theft. We reverse.
The trial court is required to instruct the jury on lesser included offenses necessarily included in the major offense charged. Brown v. State, 206 So. 2d 377 (Fla.1968). It is impossible to prove robbery without proving theft. State v. Bruns, 429 So. 2d 307 (Fla.1983). Because theft is not two or more steps from the offense appellant was convicted of, failure to give the requested instruction was not harmless error. State v. Abreau, 363 So. 2d 1063 (Fla.1978); Butler v. State, 379 So. 2d 715 (Fla. 5th DCA 1980).
There was no evidence presented at trial that the value of the property taken was $100 or more. In such a case, petit theft is the next immediate lesser included offense of robbery. Bruns.
Because appellant was convicted of the lesser offense of robbery, on retrial he cannot be prosecuted for armed robbery. Bowden v. State, 152 Fla. 715, 12 So. 2d 887 (1943); opinion After remand, State v. Bowden, 154 Fla. 511, 18 So. 2d 478 (1944).
Appellant’s judgments and sentences for grand theft of an automobile and false imprisonment are affirmed.
REVERSED in part, and REMANDED for a new trial for the offense of robbery.
HOBSON and DANAHY, JJ., concur.
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Pina v. State, 468 So. 2d 475 (Fla. 2d DCA 1985)…ate did not plead that appellant obtained any specific amount of money from the robbery, nor did the evidence at trial reveal the specific amount obtained. Therefore, appellant was entitled to a jury instruction on petit theft, see Jackson v. State, 449 So. 2d 411 (Fla. 2d DCA 1984), if timely requested, see State v. Bruns, 429 So. 2d 307, 310 (Fla. 1983). However, his request was for an instruction on grand theft. The trial court sentenced appellant to two consecutive terms of life imprisonment without poss…
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White v. State, 645 So. 2d 1122 (Fla. 3d DCA 1994)…e there is no evidence that the defendant took any money or other property from the person or custody of Katherine Sanders, and, consequently, the evidence is insufficient to convict for this offense. § 812.13(1), Fla.Stat. (1991); Jackson v. State, 449 So. 2d 411 (Fla. 2d DCA 1984); see Arnold v. State, 83 So. 2d 105, 108 (Fla.1955). Because the reversal of this conviction may change the sentencing guidelines range in this case, we must reverse the sentences imposed on the remaining convictions so that the d…
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Merrone v. State, 116 So. 3d 589 (Fla. 3d DCA 2013)…of the greater offense, and double jeopardy principles bar a prosecution on the greater offense upon retrial). See also Bowden v. State, 152 Fla. 715, 12 So. 2d 887 (1943), opinion after remand, 154 Fla. 511, 18 So. 2d 478 (1944); Jackson v. State, 449 So. 2d 411 (Fla. 2d DCA 1984). . Although not necessary to our decision, because this case is remanded for a new trial we add the following: Merrone raises another evidentiary claim-the erroneous admission of testimony by Nurse Huckabay (approximately two day…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- State v. Rubin Bowden, 154 Fla. 511 (Fla. 1944)
- State v. Bruns, 429 So. 2d 307 (Fla. 1983)
- Rubin Bowden v. State, 152 Fla. 715 (Fla. 1943)
- Flozell Butler v. State, 379 So. 2d 715 (Fla. 5th DCA 1980)