Lesser Included Offense Doctrine

60 Florida cases classified under this topic · sorted by citation count · browse and sort

• Fuller v. United States
  407 F.2d 1199· D.C. Cir.· 1967-11-20 ·cited 116×
  The court held that it was prejudicial error to permit convictions of two degrees of homicide for the same death, contrary to prior precedent.
• State v. Hightower
  509 So. 2d 1078· Fla.· 1987-04-02 ·cited 107×
  Lewd and lascivious conduct is not a necessarily included lesser offense of sexual battery under section 800.04, as amended in 1984, because the statutory amendment made the two crimes mutually exclusive by providing that conduct constituting sexual battery cannot be prosecuted a
• United States v. Johnson
  637 F.2d 1224· 9th Cir.· 1980-08-29 ·cited 85×
  The court held that the trial court committed reversible error by refusing to instruct the jury on lesser included offenses, adopting the 'inherent relationship' test for identifying such offenses.
• United States v. White
  417 F.2d 89· 2d Cir.· 1969-10-10 ·cited 57×
  The court held that the evidence obtained from the appellants was voluntarily produced and admissible, and that while convictions for tax evasion and subscribing to false returns were affirmed, cumulative fines for the false return charges were improper.
• Kelly v. United States
  370 F.2d 227· D.C. Cir.· 1966-11-07 ·cited 50×
  A lesser offense is not necessarily included if the greater offense can be committed without committing the lesser.
• Pitts v. State
  425 So. 2d 542· Fla.· 1983-01-06 ·cited 48×
  An acquittal on an aggravated battery charge does not require vacation of a conviction for possession of a firearm during the commission of aggravated battery when the jury instruction permits conviction based on attempted aggravated battery, and the jury could have logically inf
• United States v. Barket
  530 F.2d 181· 8th Cir.· 1975-12-09 ·cited 48×
• United States v. Brewster
  506 F.2d 62· D.C. Cir.· 1974-08-02 ·cited 39×
  A conviction under the illegal gratuity statute (18 U.S.C. § 201(g)) can be sustained as a lesser included offense of bribery (18 U.S.C. § 201(c)(1)), but the trial judge's instructions failed to adequately distinguish between the offenses.
• Johnson v. State
  226 So. 2d 884· Fla. 2d DCA· 1969-10-03 ·cited 32×
  A defendant cannot be convicted of receiving stolen property as a lesser-included offense of larceny of an automobile, because these are separate, substantive, and legally inconsistent offenses, and receiving stolen property is not a necessary element in proving theft.
• Escobar v. United States
  388 F.2d 661· 5th Cir.· 1967-12-18 ·cited 32×
• United States v. Vince Joseph Brischetto
  538 F.2d 208· 8th Cir.· 1976-07-13 ·cited 30×
  The court held that the trial court erred in refusing to instruct the jury on the lesser included offense of simple possession, as the evidence presented a rational basis for the jury to acquit on the greater charge while convicting on the lesser.
• Fransaw v. Lynaugh
  810 F.2d 518· 5th Cir.· 1987-02-23 ·cited 26×
  The court held that reinstating dismissed indictment counts after a failed plea bargain does not violate double jeopardy, and conviction for a lesser included offense not explicitly indicted is permissible.
• Miller v. A.A. Stagner and R.L. Pulley
  757 F.2d 988· 9th Cir.· 1985-04-08 ·cited 25×
  The court held that the defendant's constitutional right to be present at critical stages of the trial was violated when he was excluded from an in camera juror disqualification hearing.
• United States v. Staggs
  881 F.2d 1527· 10th Cir.· 1989-08-07 ·cited 24×
  The court held that the indictment's Continuing Criminal Enterprise (CCE) count was sufficient because the grand jury had identified the defendants with at least three violations, satisfying the Fifth Amendment, and the Sixth Amendment notice requirement could be met by a bill of
• Higdon v. State
  465 So. 2d 1309· Fla. 5th DCA· 1985-03-14 ·cited 20×
  Vehicular homicide is a valid lesser included offense of DWI manslaughter based on the Florida Supreme Court's schedule of lesser included offenses, and the trial court properly instructed the jury on this lesser offense despite the apparent statutory incongruity between the two
• United States v. Reno Richard Cova, Jr.
  755 F.2d 595· 7th Cir.· 1985-02-22 ·cited 18×
  The court held that conspiracy to possess cocaine is a lesser included offense of conspiracy to distribute cocaine, and therefore the trial court properly allowed the government to amend the indictment.
• United States v. Williams
  775 F.2d 1295· 5th Cir.· 1985-11-05 ·cited 17×
  The court held that the district court exceeded statutory limits by imposing a life sentence without a jury recommendation, and that the jury instructions on flight were proper.
• United States v. Richardson
  687 F.2d 952· 7th Cir.· 1982-08-23 ·cited 16×
  The court held that the nature of the custody or confinement is an essential element of the offense under 18 U.S.C. § 751(a), which must be alleged in the indictment and proven at trial.
• Lindsey v. State
  416 So. 2d 471· Fla. 4th DCA· 1982-06-02 ·cited 14×
  A charging information alleging burglary with assault must contain the factual elements of the assault, as assault is an essential element that elevates burglary from second to first degree; the information was deficient here, requiring reversal of the first-degree burglary convi
• United States v. Campbell
  652 F.2d 760· 8th Cir.· 1981-07-10 ·cited 14×
  The court held that simple possession of marijuana is not a lesser included offense of attempting to introduce contraband into a federal correctional institution because possession is not an element of the greater offense, and the evidence did not sufficiently dispute the intent
• United States v. Bishop
  455 F.2d 612· 9th Cir.· 1972-02-11 ·cited 14×
  The court held that the trial court erred in refusing to instruct the jury on 26 U.S.C. § 7207 as a lesser included offense of 26 U.S.C. § 7206(1).
• United States v. Cooper
  812 F.2d 1283· 10th Cir.· 1987-02-27 ·cited 12×
  The court held that giving lesser included offense instructions based solely on the 'inherent relationship' test over the defendant's objection violates due process.
• United States v. Scharf
  558 F.2d 498· 8th Cir.· 1977-07-20 ·cited 12×
  The court held that the district court did not err in admitting evidence of altered records, summary exhibits, or in refusing lesser included offense instructions, and that the sentences imposed were not excessive.
• United States v. Forsythe
  594 F.2d 947· 3d Cir.· 1979-02-15 ·cited 11×
  The court held that the admission of evidence of uncharged crimes in rebuttal to character evidence was prejudicial error, requiring reversal of the convictions.
• In the Interest of C.T.
  582 So. 2d 1245· Fla. 4th DCA· 1991-07-24 ·cited 10×
  A conviction for a crime not charged in the petition violates constitutional due process and the right to be informed of the nature and cause of the accusation, constitutes fundamental error, and requires reversal.
• Jewel May Daophin v. State
  511 So. 2d 1037· Fla. 4th DCA· 1987-08-05 ·cited 8×
  A defendant charged with trafficking in cocaine by delivery must be instructed on the lesser included offense of simple possession, regardless of whether the charging document alleges only delivery.
• Ngoc C. Thach v. State
  342 So. 3d 620· Fla.· 2022-06-30 ·cited 7×
  Midtrial amendments that alter the elements of a charged offense are not per se prejudicial; instead, courts must conduct an individualized, fact-specific inquiry examining the totality of the circumstances to determine whether the amendment prejudices the defendant's substantial
• United States v. Valencia
  957 F.2d 1189· 5th Cir.· 1992-03-25 ·cited 6×
  The court held that the district court did not abuse its discretion in refusing to play a Spanish language tape recording to the jury, in omitting a lesser-included offense instruction, or in admitting hearsay statements offered to explain the DEA's conduct.
• Correll v. Johnson v. State of Fla.
  Fla. 1st DCA· 2021-04-08 ·cited 4×
  The appellate court affirmed in part and reversed in part a conviction for sexually abusing a child. The court reversed the imposition of discretionary fines because the trial court failed to individually pronounce each fine, but affirmed the conviction on one count because the d
• Everton Baker v. State
  102 So. 3d 756· Fla. 4th DCA· 2012-12-19 ·cited 4×
  A trial court errs when it permits cross-examination into the specific nature of a defendant's prior arrests in response to the defendant's testimony about experiencing police profiling, particularly where the prior arrests are for the same crime charged at trial, unless the defe
• United States v. O'Connor
  953 F.2d 338· 7th Cir.· 1992-01-28 ·cited 4×
  The Double Jeopardy Clause does not bar a RICO prosecution when predicate acts for which the defendant was previously prosecuted are used, as RICO involves complex, long-term criminal activity distinct from discrete predicate offenses.
• Sailor v. Scully
  836 F.2d 118· 2d Cir.· 1987-12-30 ·cited 4×
  The court held that the Double Jeopardy Clause did not bar the state from resentencing Sailor as a second felony offender after an unsuccessful attempt to sentence him as a persistent felony offender, as the two sentencing schemes are distinct.
• Palmer v. State
  254 So. 3d 426· Fla. 4th DCA· 2018-06-13 ·cited 3×
  Grand theft auto is a lesser included offense of carjacking, and convicting a defendant of both offenses arising from a single criminal act violates double jeopardy protections. The conviction for grand theft auto must be vacated, and the case remanded for resentencing on the car
• Reggie Eugene Allen v. State
  324 So. 3d 920· Fla.· 2021-09-02 ·cited 2×
  The Florida Supreme Court answered a certified question of great public importance, holding that sexual battery is not a necessarily lesser included offense of capital sexual battery because their victim-age elements are mutually exclusive—capital sexual battery requires a victim
• Palmer v. State
  752 So. 2d 665· Fla. 2d DCA· 2000-01-26 ·cited 2×
  William Palmer appeals his conviction for robbery with a firearm, armed burglary, aggravated assault, and petit theft arising from an armed robbery of a pizza store. The court found merit in Palmer's arguments that the trial court abused its discretion by denying him the opportun
• Strasser v. State
  420 So. 2d 611· Fla. 4th DCA· 1982-09-08 ·cited 2×
  Failure to instruct the jury on attempted robbery, a lesser included offense, was reversible error where the trial occurred in January 1981, as Florida law at that time required such instruction even when the evidence proved only the completed offense. The subsequent rule change
• Stafford Lake v. State
  380 So. 2d 1120· Fla. 2d DCA· 1980-03-05 ·cited 2×
  A conviction for involuntary sexual battery by threatening to use a weapon constitutes a valid lesser included offense of sexual battery with a deadly weapon, even though the statute does not explicitly use the term 'with a weapon,' because threatening to use a weapon is equivale
• Berresford Bacchus v. State
  572 So. 2d 568· Fla. 4th DCA· 1991-01-16 ·cited 1×
• Evin A. Figueroa Hernandez v. State
  Fla. 3d DCA· 2026-07-22
  The trial court did not abuse its discretion in admitting DNA evidence where the analyst testified to standard procedures, peer review, and general acceptance in the scientific community, and the multiple counts did not violate double jeopardy because each count charged a distinc
• Meyer v. State
  Fla. 5th DCA· 2025-09-26
  Dual convictions for DUI causing property damage and DUI causing manslaughter or serious bodily injury arising from the same criminal episode violate double jeopardy because these offenses are degree variants of the same offense.
• Pryor v. State
  Fla.· 2025-09-18
  An escape from a juvenile detention facility under section 39.061 constitutes a qualifying predicate offense for violent career criminal status under section 775.084(1)(d) because the statute expressly provides that juvenile escape constitutes escape within the meaning of section
• D.G.D. v. State
  Fla. 3d DCA· 2022-06-15
  Double jeopardy does not bar separate convictions for grand theft of a motor vehicle and burglary of an unoccupied conveyance committed in a single criminal episode because each offense requires proof of an element the other does not, and burglary is not a lesser included offense
• S. S. v. State
  Fla. 2d DCA· 2021-06-11
  The appellate court reversed a delinquency adjudication for trespass, finding the state failed to prove the notice element of the offense. Specifically, the court held that evidence of a fence alone was insufficient without proof of its height to establish statutory notice requir
• Ngoc C. Thach v. State
  Fla. 1st DCA· 2020-09-24
  A substantive amendment of an information during trial does not prejudice a defendant's substantial rights when the amended lesser charges are subsumed within the original greater charges as alleged, and the defendant was on notice of the sexual nature of the conduct charged.
• Barnett v. State
  Fla. 2d DCA· 2019-08-14
  A defendant cannot be convicted of both first-degree felony murder and aggravated battery on a law enforcement officer based on a single homicidal act, as the aggravated battery conviction violates double jeopardy under the merger doctrine because aggravated battery is not an enu
• Shayla Lewis v. State
  264 So. 3d 1134· Fla. 2d DCA· 2019-02-20
  Shayla Lewis appealed her convictions for executing a scheme to defraud a financial institution, unlawful possession of a stolen credit card, fraudulent use of a credit card, grand theft, and criminal use of personal identification information. The court affirmed most convictions
• Reidel E. Armas v. State
  Fla. 5th DCA· 2018-06-25
  Dual convictions for possession of cannabis with intent to sell or deliver and manufacturing cannabis do not violate double jeopardy principles because they are separate offenses under section 775.021(4)(a), each requiring proof of an element the other does not, and the Legislatu
• Scott v. State
  Fla. 1st DCA· 2018-05-31
  Convictions under section 322.34(2)(b), Florida Statutes (2016), must be vacated and the defendant adjudicated guilty of the lesser included offense of driving without a valid driver's license.
• Harris v. State
  549 So. 2d 1183· Fla. 5th DCA· 1989-10-12
  When a defendant is convicted of both aggravated assault and use of a firearm in commission of a felony arising from a single act, the aggravated assault convictions must be vacated because use of a firearm is the higher offense under Carawan and State v. Barton.
• Blow v. State
  386 So. 2d 872· Fla. 1st DCA· 1980-08-15
  When an armed robbery information alleges the defendant carried a firearm in the commission of the offense, the trial court may properly instruct the jury on aggravated assault as a lesser included offense; defendant's failure to object to such instruction at trial does not const