SCHWARTZ MONZELL GAINER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gainer appeals convictions for cocaine possession with intent to distribute, attempted sale/delivery, and being a principal to sale/delivery. The court reverses the possession with intent to distribute conviction because the trial court erroneously refused to instruct the jury on the lesser included offense of simple possession, but affirms the other two convictions.
The trial court erred in refusing to instruct on simple possession as a lesser included offense. Because the pleadings set out the elements of simple possession and the evidence could have supported such a conviction, the defendant was entitled to the instruction. The conviction for possession with intent to distribute is reversed, but the convictions for attempted sale/delivery and being a principal to sale/delivery are affirmed.
[1] A defendant is entitled to a jury instruction on a lesser included offense if the pleadings set out the elements of the lesser offense and the evidence could have support…
[2] Possession of cocaine is a permissive lesser included offense of possession of cocaine with intent to distribute when the information and evidence presented at trial coul…
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Join FLexlaw to unlock all legal intelligence“Possession of cocaine is a lesser offense whose elements are identical to some of the elements of possession of cocaine with intent to deliver.”
Establishes that simple possession qualifies as a lesser included offense under Florida law
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Join FLexlaw to unlock all legal intelligenceGainer was arrested with a piece of crack cocaine in his pocket. He was charged with multiple drug offenses including possession of cocaine with inten…
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PER CURIAM.
Schwartz Monzell Gainer appeals final judgments adjudicating him guilty, on account of multiple transactions, of possession of cocaine with intent to distribute (deliver) in violation of Section 893.13(l)(a), Florida Statutes (1991), of attempted sale or delivery of cocaine, and of being a principal to the sale or delivery of cocaine. He was sentenced to five years’ imprisonment for possession with intent to deliver, and to ten-year terms on each of the other two convictions, the sentences to run concurrently.
The only issue on appeal is whether the trial court erred in failing to instruct the jury on simple possession of cocaine, proscribed by Section 893.13(l)(f), Florida Statutes (1991). Undisputed evidence showed that appellant had a piece of crack cocaine in his pocket at the time of his arrest. Possession of cocaine is a lesser offense whose elements are identical to some of the elements of possession of cocaine with intent to deliver. The information filed and the evidence adduced at trial made simple possession a “permissive” or “category two” lesser included offense. See Cave v. State, 613 So. 2d 454, 456 n. 1 (Fla.1993) (Kogan, concurring); Fla.Std.Jury Instr. (Crim.) [283, et seq.].
At what became the preliminary charge conference, counsel alerted the trial judge to the defense contention that the jury should be instructed on simple possession of cocaine:
THE COURT: ... I’ll hear you on any lesser included that you think may be involved.
MS. ATKINS: On the possession with intent to sell, wouldn’t a simple possession be a lesser included offense, Judge?
THE COURT: I’m looking. Schedule of lesser included offenses. Page 300 under Category 1 of the main charge: Sale, manufacture, delivery or possession with intent to sell, manufacture or deliver of a controlled substance, it lists none. Under Category 2, attempt is a possibility — there has been no evidence of an attempt except in the main charge of Count 1 of 91-1663. So I conclude there are no lesser includ-eds. I would be happy to hear any further argument.
(No responses)
THE COURT: Okay, We’ll treat this as a preliminary charge conference....
R. at 108. The Florida Supreme Court has interpreted the contemporaneous objection rule, Fla.R.Cr.P. 3.390(d), to require an objection “sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” Castor v. State, 365 So. 2d 701, 703 (Fla.1978). What occurred below suffices.
After the colloquy set out above, the judge asked if there were “any other requested instructions.” Neither side had requested any instruction other than an instruction regarding simple possession. The trial judge also asked whether there were “requests for additional instructions or objections to those given other than previously noted.” The trial judge “was fully aware that an objection was made to the failure to instruct ... [and] the specific grounds for the objection were presented, and ... [he] was given a clear opportunity to rule on the objection.” Hubbard v. State, 411 So. 2d 1312, 1315 (Fla. 1st DCA 1982).
The appellant was entitled to the requested instruction because the pleadings set out the elements of and the evidence could have supported a conviction for the commission of the lesser offense. Amado v. State, 585 So. 2d 282 (Fla.1991); Hutchinson v. State, 580 So. 2d 257, 260 (Fla. 1st DCA 1991), citing State v. Daophin, 533 So. 2d 761 (Fla.1988). The failure to give the instruction requested was reversible error. Amado v. State, supra; Johnson v. State, 570 So. 2d 1158 (Fla. 5th DCA 1990). The conviction for possession of cocaine with the intent to distribute is, therefore, reversed. We affirm appellant’s convictions and sentences for attempted sale or delivery of cocaine and as a principal to the sale and delivery of cocaine.
ERVIN, BARFIELD and BENTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wong v. State, 212 So. 3d 351 (Fla. 2017)…in result. CANADY, J., dissents. LAWSON, J., did not participate. . Wong also contends that the decision below was in conflict with the decisions of other district courts in Calhoun v. State, 721 So. 2d 1180 (Fla. 1st DCA 1998), Gainer v. State, 633 So. 2d 480 (Fla. 1st DCA 1994), Hubbard v. State, 411 So. 2d 1312 (Fla. 1st DCA 1981), dismissed, 424 So. 2d 761 (Fla. 1982), and LeRetilley v. Harris, 354 So. 2d 1213 (Fla. 4th DCA 1978). In light of conflict with our decision in Heathcoat, 442 So. 2d 955, we…
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Jones v. State, 714 So. 2d 627 (Fla. 1st DCA 1998)…er defense counsel preserved the issue by simply requesting the battery charge, without expressly informing the court that the defense was claiming the right to the instruction as a necessarily lesser included offense. This court in Gainer v. State, 633 So. 2d 480 (Fla. 1st DCA 1994), found the issue preserved where the defense requested an instruction on the lesser included offense without informing the court that the lesser offense was necessarily included. See also Holland v. State, 634 So. 2d 813 (Fla. 1s…
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O'Neal v. State, 678 So. 2d 922 (Fla. 1st DCA 1996)…offense is included in the offense charged.’ ” Amado v. State, 585 So. 2d 282 (Fla.1991). In the instant case, appellant was entitled to the requested instruction, and the court’s failure to give the instruction is reversible error. Gainer v. State, 633 So. 2d 480, 481 (Fla. 1st DCA 1994). The cause is remanded for new trial. MINER and LAWRENCE, JJ., and SMITH, Senior Judge, concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Amado v. State, 585 So. 2d 282 (Fla. 1991)
- State v. Jewel May Daophin, 533 So. 2d 761 (Fla. 1988)
- Hubbard v. State, 411 So. 2d 1312 (Fla. 1st DCA 1981)
- Foster v. State, 613 So. 2d 454 (Fla. 1993)
- Cave v. State, 613 So. 2d 454 (Fla. 1993)
- Hutchinson v. State, 580 So. 2d 257 (Fla. 1st DCA 1991)
- Johnson v. State, 570 So. 2d 1158 (Fla. 5th DCA 1990)