REGINALDO CARVALHO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant's conviction for trafficking in cocaine in excess of 400 grams was reversed because the trial court failed to instruct the jury on simple possession of cocaine, a necessarily included lesser offense, and the defendant's stipulation to possessing over 400 grams did not constitute a knowing and intelligent waiver of that instruction.
Failure to instruct the jury on simple possession of cocaine, a necessarily included lesser offense of trafficking in cocaine, is per se reversible error absent a knowing and intelligent waiver by the defendant.
[1] A defendant's stipulation to possessing a quantity of cocaine in excess of a trafficking threshold does not constitute a knowing and intelligent waiver of the right to a…
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Join FLexlaw to unlock all legal intelligenceReginaldo Carvalho was convicted of trafficking in cocaine in excess of 400 grams. Carvalho stipulated that he possessed over 400 grams of cocaine.…
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PER CURIAM.
Defendant Reginaldo Carvalho appeals a conviction and sentence for trafficking in cocaine in excess of 400 grams, maintaining that the trial court erred in failing to give an instruction on simple possession of cocaine. We agree and reverse.
Simple possession of cocaine is a category one necessarily included lesser offense of trafficking in cocaine; failure to give an instruction on the next immediate lesser included offense is per se reversible error. State v. Abreau, 363 So. 2d 1063 (Fla.1978); Daophin v. State, 511 So. 2d 1037 (Fla. 4th DCA 1987); Butler v. State, 497 So. 2d 1327 (Fla. 4th DCA 1986); DiPaola v. State, 461 So. 2d 284 (Fla. 4th DCA 1985); Smith v. State, 461 So. 2d 1024 (Fla. 4th DCA 1985). Contra Brown v. State, 483 So. 2d 743 (Fla. 5th DCA 1986). Although a defendant may waive his procedural right to have the jury instructed on necessarily included offenses, Carvalho’s stipulation that he possessed over 400 grams of cocaine was not the equivalent of a waiver. The supreme court has concluded that the defendant himself must expressly waive the right to these instructions, and that the record must reflect that the waiver was knowingly and intelligently made. Harris v. State, 438 So. 2d 787 (Fla.1983).
Reversed and remanded.
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Citator
Cited By
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Garrison v. State, 530 So. 2d 365 (Fla. 5th DCA 1988)…Brown v. State, 483 So. 2d 743 (Fla. 5th DCA 1986), relied on Rotenberry for its holding that possession and sale were not lesser offenses of trafficking, we conclude that Brown has been overruled sub silentio, by Carawan. . See Carvalho v. State, 513 So. 2d 1321 (Fla. 3rd DCA 1987), which held that possession of cocaine is a necessarily lesser included offense of trafficking; and Gordon v. State, 528 So. 2d 910 (Fla. 2d DCA 1988) (sale of cocaine and possession with intent to sell the same cocaine are 530 S…
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Essex v. State, 539 So. 2d 559 (Fla. 4th DCA 1989)…at more than twenty-eight grams were involved here. Nonetheless, we must still consider the doctrine of jury pardon and a stipulation as to the amount of the cocaine that was possessed has been held not to constitute a waiver. See Carvalho v. State, 513 So. 2d 1321 (Fla. 3d DCA 1987). Sub judice, the charge read as follows: [D]id knowingly sell, manufacture, deliver or bring into the State of Florida or was in knowing or actual or constructive possession of cocaine or a mixture containing cocaine in the amoun…
Authorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Harris v. State, 438 So. 2d 787 (Fla. 1983)
- Brown v. State, 483 So. 2d 743 (Fla. 5th DCA 1986)
- DiPAOLA v. State, 461 So. 2d 284 (Fla. 4th DCA 1985)
- Hattie Butler v. State, 497 So. 2d 1327 (Fla. 4th DCA 1986)
- Jewel May Daophin v. State, 511 So. 2d 1037 (Fla. 4th DCA 1987)
- Smith v. State, 461 So. 2d 1024 (Fla. 4th DCA 1985)