SERVILIO CRESPO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Servilio Crespo challenges his armed robbery conviction, arguing the trial court erred by refusing to instruct the jury on aggravated assault as a lesser included offense. The court affirmed, holding that failure to instruct on a lesser included offense two steps removed from the charged crime constitutes harmless error.
No. The trial court's refusal to instruct on aggravated assault was harmless error because aggravated assault is two steps removed from armed robbery, and the court's failure to instruct on a lesser included offense two steps removed from the charged offense constitutes harmless rather than reversible error.
[1] A trial court is required to instruct the jury on the next immediate lesser included offense of the crime charged.
[2] Failure to instruct on a lesser included offense one step removed from the charged offense is per se reversible error.
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Join FLexlaw to unlock all legal intelligence“The law is clear that the trial court is required to instruct the jury on the next immediate lesser included offense of the crime charged as the trial court properly did here by instructing the jury on simple robbery.”
Establishes the rule that trial courts must instruct on the immediate lesser included offense
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Join FLexlaw to unlock all legal intelligenceCrespo was arrested and charged with armed robbery and armed kidnapping for holding up a restaurant. At the close of evidence, defense counsel request…
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PER CURIAM.
Servilio Crespo, defendant in the trial court, seeks review of the trial court’s entry of judgment and sentence.
Defendant was arrested and charged with armed robbery and armed kidnapping for holding up a restaurant. At the close of evidence, defense counsel requested a jury instruction on aggravated assault. The trial judge denied defendant’s request and instructed the jury on armed robbery and the next immediate lesser included offense of simple robbery. The jury returned a guilty verdict on the charge of armed robbery. Appellant now complains that the trial court erred by failing to give a required instruction on aggravated assault as a lesser included offense of the charged offense of armed robbery.
The law is clear that the trial court is required to instruct the jury on the next immediate lesser included offense of the crime charged as the trial court properly did here by instructing the jury on simple robbery. State v. Abreau, 363 So. 2d 1063 (Fla. 1978); Bates v. State, 579 So. 2d 849 (Fla. 2d DCA 1991). Failure to instruct on a lesser included offense one step removed from the charged offense is per se reversible error. Reddick v. State, 394 So. 2d 417 (Fla.1981); Abreau, 363 So. 2d at 1064. However, aggravated assault is two steps removed from the charged offense of armed robbery. Taylor v. State, 608 So. 2d 804 (Fla.1992). Failure to instruct on a lesser included offense two steps removed from the offenses for which a defendant is convicted is harmless error. Abreau, 363 So. 2d at 1064. Thus, because aggravated assault is two steps removed from the charged offense of armed robbery, any error resulting from the trial court’s refusal to instruct the jury on aggravated assault was harmless.
Accordingly, the trial court’s judgment and sentence are affirmed.
Affirmed.
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Riley v. State, 25 So. 3d 1 (Fla. 1st DCA 2008)…on, the state relies on authorities recognizing that the failure to instruct on a lesser included offense two steps or more removed from the offense for which the defendant is convicted is harmless error. Abreau, 363 So. 2d at 1063; Crespo v. State, 647 So. 2d 295 (Fla. 3d DCA 1994). According to the state, these authorities dictate that the error here was harmless and appellate counsel cannot be faulted for failing to raise it because lewd or lascivious molestation of a child under 12, a violation of section…
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Mohammed v. State, 662 So. 2d 399 (Fla. 5th DCA 1995)…PER CURIAM. AFFIRMED. See State v. Abreau, 363 So. 2d 1063 (Fla.1978); Crespo v. State, 647 So. 2d 295 (Fla. 3d DCA 1994); Bates v. State, 579 So. 2d 849 (Fla. 2d DCA 1991). GOSHORN, GRIFFIN and THOMPSON, JJ., concur.…
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Lycette v. State, 707 So. 2d 875 (Fla. 4th DCA 1998)…on to the other lesser included offenses and provided simple battery as an option on the verdict form. The failure to instruct the jury on a permissible lesser included offense can be harmless error. See Abreau, 363 So. 2d at 1064; Crespo v. State, 647 So. 2d 295, 296 (Fla. 3d DCA 1994). However, the specific facts of this case preclude us from holding that the trial court’s failure to instruct on simple battery was harmless error because [*877] the jury did not have the opportunity to consider whether appel…
Authorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Reddick v. State, 394 So. 2d 417 (Fla. 1981)
- Taylor v. State, 608 So. 2d 804 (Fla. 1992)
- Bates v. State, 579 So. 2d 849 (Fla. 2d DCA 1991)