Necessarily Included Offense

68 Florida cases classified under this topic · sorted by citation count · see the citation graph · browse and sort

• Brown v. State
  206 So. 2d 377· Fla.· 1968-01-17 ·cited 839×
  Brown was convicted of robbery after a trial judge refused to instruct the jury on the lesser included offense of larceny. The Florida Supreme Court reversed, holding that trial judges must instruct juries on necessarily included offenses even when the evidence strongly supports
• State v. Baker
  456 So. 2d 419· Fla.· 1984-07-12 ·cited 183×
  Florida Supreme Court held that Brown category four lesser included offenses have no application to double jeopardy analysis under Florida's multiple punishment statute. The court clarified that statutory elements, not charging documents or evidence, determine whether separate co
• Melvee Tucker v. State
  459 So. 2d 306· Fla.· 1984-10-25 ·cited 95×
  The Florida Supreme Court held that failure to allege venue in an indictment is an error of form rather than substance and does not render the indictment void absent a showing of prejudice to the defendant. The Court also held that a defendant's mere request for jury instructions
• Linehan v. State
  442 So. 2d 244· Fla. 2d DCA· 1983-11-09 ·cited 78×
  Mitchell Linehan was convicted of arson and first-degree felony murder for setting a fire in his girlfriend's apartment building that killed one person. On appeal, the court addressed three novel questions: whether voluntary intoxication is a defense to arson, whether it is a def
• Baker v. State
  425 So. 2d 36· Fla. 5th DCA· 1982-12-08 ·cited 74×
  Charles Baker was convicted of first-degree murder and use of a firearm in the commission of a felony in a single trial. On appeal, Baker challenged whether he could be convicted and sentenced for both offenses, arguing the firearm charge was a lesser included offense that should
• Gilford v. State
  313 So. 2d 729· Fla.· 1975-04-09 ·cited 70×
  The Florida Supreme Court held that a trial court properly refused to instruct the jury on a lesser included offense (petit larceny) when the evidence presented supported only the greater offense (felony breaking and entering with intent to commit grand larceny). The Court clarif
• Jones v. State
  666 So. 2d 960· Fla. 3d DCA· 1996-01-10 ·cited 62×
  Larry Jones was convicted of grand theft of a motor vehicle and appealed, arguing the trial court erred in refusing to instruct the jury on the lesser included offense of trespass in a conveyance. The court affirmed, holding that a jury instruction on a category 2 permissive less
• McELVEEN v. State
  415 So. 2d 746· Fla. 1st DCA· 1982-05-18 ·cited 52×
  McElveen appeals his convictions for burglary with assault and sexual battery, challenging the trial court's exclusion of evidence regarding the victim's prior sexual conduct and reputation. The court reverses in part, holding that evidence of the victim's reputation for unchasti
• Green v. State
  475 So. 2d 235· Fla.· 1985-08-30 ·cited 42×
  Josh Green was convicted of second-degree murder after being charged with first-degree premeditated murder. The Florida Supreme Court held that while third-degree felony murder can be a permissive lesser included offense of first-degree premeditated murder under certain circumsta
• Welsh v. State
  850 So. 2d 467· Fla.· 2003-06-12 ·cited 36×
  The Florida Supreme Court resolved a conflict among district courts regarding whether lewd and lascivious conduct is a permissive lesser included offense of capital sexual battery. The Court held that the two offenses are mutually exclusive under the 1997 statutory versions, and
• Wheat v. State
  433 So. 2d 1290· Fla. 1st DCA· 1983-06-30 ·cited 35×
  Wheat was convicted of robbery with a deadly weapon after the trial court refused to instruct the jury on lesser included offenses (robbery with a weapon, robbery without a weapon, and petit theft). The court reverses, holding that when sufficient evidence of a greater offense ex
• Castillo v. State
  929 So. 2d 1180· Fla. 4th DCA· 2006-06-07 ·cited 34×
  A conviction for an uncharged crime violates due process, and when a charging instrument's body alleges one crime but its heading names another, the body controls. Burglary of a structure is a necessarily included offense of burglary of a dwelling.
• Goddard v. State
  458 So. 2d 230· Fla.· 1984-09-06 ·cited 26×
  The Florida Supreme Court held that section 812.019(2) of the Anti-Fencing Act applies only to individuals who organize or direct theft operations, not to common thieves who simply steal and resell their own stolen goods. The Court reversed Goddard's conviction under section 812.
• Jones v. State
  358 So. 2d 37· Fla. 4th DCA· 1978-04-04 ·cited 26×
  Charlie Jones was convicted of aggravated assault based on a jury verdict, though the information charged him only with aggravated battery. The appellate court affirmed the conviction, holding that Jones was estopped from challenging the instruction on aggravated assault because
• Green v. United States
  218 F.2d 856· D.C. Cir.· 1955-01-20 ·cited 26×
• Moore v. State
  932 So. 2d 524· Fla. 4th DCA· 2006-06-21 ·cited 23×
  David Moore was convicted of first-degree arson for setting fire to his mobile home. The Fourth District Court of Appeal reversed and remanded for a new trial, holding that the trial court erred by refusing to instruct the jury on second-degree arson as a permissive lesser-includ
• Henderson Nurse v. State
  658 So. 2d 1074· Fla. 3d DCA· 1995-07-05 ·cited 22×
  Henderson Nurse was convicted of attempted burglary, petit theft, and resisting arrest. On appeal, the court held that attempted burglary cannot be a proper lesser included offense of burglary of an unoccupied structure because both are third-degree felonies carrying the same pen
• Smith v. State
  573 So. 2d 194· Fla. 3d DCA· 1991-01-22 ·cited 22×
  The court affirmed the burglary conviction but reversed the grand theft conviction and the habitual offender sentence, remanding for resentencing.
• Cannon v. State
  456 So. 2d 513· Fla. 5th DCA· 1984-09-13 ·cited 22×
  Ronnie Wayne Cannon appeals his convictions for armed robbery, attempted murder, and aggravated assault. The court reversed his aggravated assault conviction due to the trial court's erroneous refusal to instruct the jury on simple assault as a necessarily lesser included offense
• GAY v. State
  432 So. 2d 602· Fla. 2d DCA· 1983-05-18 ·cited 22×
  The court held that a defendant cannot be convicted of an offense that is not a necessarily included offense of the crime charged, absent waiver or estoppel.
• Flint v. State
  463 So. 2d 554· Fla. 2d DCA· 1985-02-15 ·cited 21×
  The court held that the trial court erred in refusing to instruct the jury on robbery while carrying a weapon, a necessarily lesser included offense, and that this error mandates reversal.
• Kem Mateo v. State
  757 So. 2d 1229· Fla. 2d DCA· 2000-04-19 ·cited 20×
  The court held that a conviction for aggravated battery cannot stand if the charging document does not allege the essential elements of the crime.
• Merritt v. State
  567 So. 2d 1031· Fla. 4th DCA· 1990-10-10 ·cited 20×
  The Fourth District Court of Appeal reversed Larry Merritt's kidnapping conviction because the trial court erroneously refused to instruct the jury on false imprisonment as a necessarily included lesser offense, a harmless error that was eliminated by a Florida Supreme Court deci
• Reilly v. State
  212 So. 2d 796· Fla. 3d DCA· 1968-07-16 ·cited 18×
  Robert Reilly was convicted by jury of breaking and entering an apartment while armed with a pistol, intending to commit grand larceny. He appeals his life sentence, challenging the prosecutor's cross-examination about his silence at arrest, jury instruction procedures, sentencin
• United States v. Whitlock
  663 F.2d 1094· D.C. Cir.· 1980-12-04 ·cited 16×
  A bank officer or employee commits embezzlement if they have control over entrusted funds by virtue of their position of trust, even if they did not have prior lawful possession or obtained access through an unauthorized act.
• Abreau v. State
  347 So. 2d 819· Fla. 3d DCA· 1977-07-06 ·cited 16×
  Jesus Abreau was convicted of assault with intent to commit first degree murder, but the appellate court reversed because the trial court erroneously refused to instruct the jury on the lesser included offense of simple assault. The court held that assault is necessarily included
• Hammer v. State
  343 So. 2d 856· Fla. 1st DCA· 1976-12-09 ·cited 16×
  Hammer was charged with robbery and convicted after the trial court refused to instruct the jury on lesser included offenses of petit larceny and aggravated assault. The appellate court reversed, holding that Florida Supreme Court precedent requires jury instructions on necessari
• Collins v. State
  605 So. 2d 568· Fla. 5th DCA· 1992-09-25 ·cited 14×
  The Court affirmed the judgment, holding that the petitioner failed to make a persuasive showing of actual innocence, and therefore, the question of whether federal courts may entertain such claims was reserved.
• Higgins v. State
  565 So. 2d 698· Fla.· 1990-07-12 ·cited 14×
  The Florida Supreme Court held that second-degree arson is not a necessarily included offense of first-degree arson, though it may be a permissive lesser included offense under certain circumstances. The Court affirmed the defendant's first-degree arson conviction where the trial
• Little v. State
  206 So. 2d 9· Fla.· 1968-01-17 ·cited 14×
  The Florida Supreme Court reviewed a robbery conviction where the trial judge refused to instruct the jury on lesser included offenses of grand and petty larceny. The Court held that when robbery is proven, larceny is necessarily proven as an included offense, and the jury must b
• Stephens v. State
  279 So. 2d 331· Fla. 2d DCA· 1973-06-08 ·cited 12×
  Jimmy Stephens appeals his conviction for armed robbery, challenging the trial court's refusal to give jury instructions on assault as a lesser included offense. The appellate court affirmed the conviction, finding that while an instruction on simple assault should have been give
• Conray Aiken v. State
  742 So. 2d 811· Fla. 2d DCA· 1999-08-06 ·cited 11×
  The court held that the Double Jeopardy Clause does not prohibit convictions for both aggravated assault with a firearm and sexual battery with a firearm arising from the same incident, as aggravated assault is a permissive lesser included offense, not a necessarily included one
• Jackson v. State
  403 So. 2d 1063· Fla. 4th DCA· 1981-09-09 ·cited 10×
  The appellate court affirmed a conviction for first-degree murder and robbery. The court held that the defendant, who provided the getaway car and the murder weapon for a robbery, was constructively present and could be convicted of felony murder even if not physically at the sce
• Carrin v. State
  875 So. 2d 719· Fla. 1st DCA· 2004-06-07 ·cited 9×
  Raymond Carrin was convicted of aggravated assault on a law enforcement officer after nearly running over a police officer with his car while evading arrest. The appellate court reversed the conviction for insufficient evidence, finding the conviction could not stand because the
• Bergent Newbold v. State
  667 So. 2d 996· Fla. 3d DCA· 1996-02-14 ·cited 8×
  Bergent Newbold appealed his convictions for five counts of attempted second-degree murder of a law enforcement officer, along with weapons charges. The court reversed the attempted second-degree murder convictions, holding that the statute applies only to attempted first-degree
• Jackson v. State
  404 So. 2d 369· Fla. 5th DCA· 1981-07-15 ·cited 8×
  The defendant was convicted of burglary of the highest degree (including assault) and attempted sexual battery based on the same assault. The court reversed the attempted sexual battery conviction because it was a necessarily included offense within the burglary conviction, and d
• Grange v. State
  371 So. 2d 723· Fla. 1st DCA· 1979-06-15 ·cited 8×
  The court held that the conviction for the lesser offense under count one was improper because it was not a lesser included offense of the greater charge. The conviction under count one is vacated.
• State v. Paffy
  369 So. 2d 340· Fla.· 1979-03-22 ·cited 8×
  A court need not instruct the jury on lesser offenses based on lesser values when the value of property involved is not in dispute and exceeds the threshold for the greater offense.
• Bright v. State
  760 So. 2d 287· Fla. 5th DCA· 2000-06-09 ·cited 7×
  Charles Bright appeals the summary denial of his Rule 3.850 motion for post-conviction relief alleging ineffective assistance of trial counsel on multiple grounds. The Fifth District Court of Appeal affirmed the denial, finding no merit to any of Bright's ineffective assistance c
• Shabazz Randazo Harris v. State
  655 So. 2d 1179· Fla. 1st DCA· 1995-05-12 ·cited 6×
  Harris appeals his conviction for sale of cocaine within 200 feet of a public housing facility, challenging the sufficiency of plea advice, the constitutionality of the statute, and discrepancies between oral and written probation conditions. The court reversed in part, vacating
• Sinclair Johnson v. State
  572 So. 2d 957· Fla. 1st DCA· 1990-12-14 ·cited 6×
  The state is entitled to have jury instructions given on category 2 lesser included offenses despite a defendant's objection, provided that the elements of the lesser offense are embodied in the charged offense and sufficiently disclosed in the evidence.
• Moore v. State
  352 So. 2d 529· Fla. 4th DCA· 1977-11-09 ·cited 6×
  Johnny William Moore was convicted of grand larceny for stealing approximately $142. The Fourth District Court of Appeal reversed because the trial judge erred in refusing to instruct the jury on petit larceny as a necessarily included offense within the grand larceny charge.
• Griffin v. State
  322 So. 2d 587· Fla. 4th DCA· 1975-11-28 ·cited 6×
  Robert Paul Griffin appeals his conviction for statutory rape, arguing the trial court erred in convicting him under a statute not charged in the information. The Fourth District Court of Appeal reversed, finding the information charging common law rape failed to allege an essent
• Cowart v. State
  277 So. 2d 821· Fla. 1st DCA· 1973-05-10 ·cited 6×
  Donald and John Wayne Cowart appealed their convictions by jury verdict, challenging whether the trial court erred by not instructing the jury on necessarily included lesser offenses. The court affirmed the convictions, holding that while such instructions are generally mandatory
• Payne v. State
  275 So. 2d 261· Fla. 4th DCA· 1973-03-28 ·cited 6×
  A defendant cannot be convicted of an offense not necessarily included in the charged offense, nor specifically alleged in the accusatory pleading, even if implied by the allegations.
• Vitagliano v. State
  680 So. 2d 500· Fla. 1st DCA· 1996-04-28 ·cited 5×
  Michael Vitagliano was convicted of sexual battery on a child after a retrial following a mistrial on the original charge. The Florida First District Court of Appeal reversed the conviction, holding that retrying him on sexual battery after he had been acquitted of the lesser-inc
• Julita De Parias v. State
  562 So. 2d 434· Fla. 3d DCA· 1990-06-19 ·cited 5×
  The court held that the trial court committed reversible error by refusing to instruct the jury on the necessarily included offense of false imprisonment for the kidnapping conviction. The murder conviction was affirmed.
• Anderson v. State
  291 So. 3d 531· Fla.· 2020-03-05 ·cited 4×
  A defendant is not entitled to a jury instruction on the permissive lesser-included offense of reckless driving where the charging instrument fails to expressly allege the element of driving, because elements of an offense cannot be established by mere inference in the charging d
• Juliao v. State
  149 So. 3d 1151· Fla. 4th DCA· 2014-10-15 ·cited 4×
  Eduardo Juliao appeals his conviction on multiple counts arising from a single criminal episode against his wife. The appellate court reverses convictions for felony battery and one count of battery on double jeopardy grounds, while affirming convictions for aggravated battery, f
• Reginaldo Carvalho v. State
  513 So. 2d 1321· Fla. 3d DCA· 1987-09-29 ·cited 4×
  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 c