Necessarily Lesser Included Offense

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

• State v. Montgomery
  39 So. 3d 252· Fla.· 2010-04-08 ·cited 485×
  The Florida Supreme Court held that the crime of manslaughter by act does not require the State to prove the defendant intended to kill the victim, only that he intended to commit an act that caused death. The Court found that the standard jury instruction requiring proof of inte
• State v. Wimberly
  498 So. 2d 929· Fla.· 1986-12-11 ·cited 245×
  The Florida Supreme Court held that trial judges must instruct juries on necessarily lesser included offenses regardless of the strength of evidence supporting conviction on the greater charge, reversing the district court's reversal of Wimberly's battery of a law enforcement off
• State v. McCLOUD
  577 So. 2d 939· Fla.· 1991-02-28 ·cited 200×
  Possession of a controlled substance is not a lesser-included offense of sale under section 775.021(4), Florida Statutes (Supp.1988), because a sale can occur without possession and the statute requires that offenses be separate if each requires proof of an element the other does
• Harris v. State
  438 So. 2d 787· Fla.· 1983-09-08 ·cited 143×
  Theodore Harris was convicted of first-degree murder, burglary with assault, and robbery of a 73-year-old woman. He appealed arguing his confession was involuntary and his trial contained procedural errors. The Florida Supreme Court affirmed the convictions and death sentence, fi
• Leronnie Lee Walton v. State
  208 So. 3d 60· Fla.· 2016-12-01 ·cited 110×
  The Florida Supreme Court reversed the First District Court of Appeal's decision affirming Leronnie Lee Walton's convictions for attempted murder and armed robbery of law enforcement officers. The court held that mandatory minimum sentences under the 10-20-Life statute need not r
• State v. Terry
  336 So. 2d 65· Fla.· 1976-02-25 ·cited 82×
  The Florida Supreme Court held that a trial court must instruct a jury on necessarily included lesser offenses when sufficient evidence exists to support the greater offense, even if the judge believes the evidence proves the greater crime. The court clarified the framework for w
• Wright v. State
  519 So. 2d 1157· Fla. 5th DCA· 1988-02-18 ·cited 65×
  Dual convictions for robbery with a firearm and aggravated assault with a deadly weapon, or for robbery with a firearm and possession of a firearm during a felony, are improper when arising from a single criminal act.
• State v. Barritt
  531 So. 2d 338· Fla.· 1988-09-29 ·cited 43×
  Reckless driving is not a required jury instruction when a defendant is charged with vehicular homicide and it is undisputed that a death occurred as a result of the accident.
• Blekley Coicou v. State
  39 So. 3d 237· Fla.· 2010-04-01 ·cited 40×
  The Florida Supreme Court answered a certified question of great public importance by holding that an appellate court cannot direct entry of a conviction for attempted second-degree murder when the jury verdict does not reflect a finding that the defendant acted with a depraved m
• State v. Connelly
  748 So. 2d 248· Fla.· 1999-08-19 ·cited 38×
  The Florida Supreme Court held that jury verdicts convicting a defendant on one count while acquitting on another are inconsistent but not "truly" inconsistent when the legal elements of the crimes do not interlock, even if the facts necessary to prove each count do interlock. Th
• Davis v. State
  560 So. 2d 1231· Fla. 5th DCA· 1990-04-05 ·cited 38×
  Davis was convicted of both possession and delivery of crack cocaine based on a single transaction. The court affirmed both convictions, holding that possession is not a lesser included offense of delivery under Florida law, and rejecting Davis's double jeopardy challenge based o
• Munroe v. State
  514 So. 2d 397· Fla. 1st DCA· 1987-10-20 ·cited 38×
  Martha Munroe was convicted of conspiracy to traffic in over 400 grams of cocaine following a reverse sting operation. The Florida First District Court of Appeal affirmed her conviction but vacated her sentence, finding that the trial court improperly departed from sentencing gui
• Benjamin v. State
  462 So. 2d 110· Fla. 5th DCA· 1985-01-17 ·cited 37×
  The court held that while resisting arrest without violence is not a necessarily lesser included offense of resisting arrest with violence, it can be a Category 2 lesser included offense, and the trial court erred in refusing to instruct the jury on it when requested.
• 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
• Oehling v. State
  659 So. 2d 1226· Fla. 5th DCA· 1995-08-25 ·cited 36×
  Oehling appeals the trial court's summary denial of his Rule 3.850 motion for a new trial based on ineffective assistance of counsel. The court held that the trial court erred by summarily denying his claim regarding failure to request a jury instruction on battery as a necessari
• Hayes v. State
  564 So. 2d 161· Fla. 2d DCA· 1990-06-20 ·cited 34×
  James Hayes was convicted of attempted first-degree felony murder and two counts of robbery after shooting a customer during an armed robbery. The Florida Second District Court of Appeal reversed the attempted murder conviction due to incomplete jury instructions on manslaughter,
• Caulder v. State
  500 So. 2d 1362· Fla. 5th DCA· 1986-12-24 ·cited 31×
  Caulder appeals his conviction for sexual battery on a child under eleven and lewd and lascivious conduct, challenging the trial court's refusal to instruct the jury on simple battery as a lesser included offense and the constitutionality of the mandatory life sentence. The Fifth
• Doyle Fryer v. State
  732 So. 2d 30· Fla. 5th DCA· 1999-04-30 ·cited 28×
  The court held that robbery and grand theft auto are necessarily lesser-included offenses of carjacking, and the trial court erred in refusing to instruct the jury on these offenses.
• Shaara v. State
  581 So. 2d 1339· Fla. 1st DCA· 1991-05-13 ·cited 27×
  Brian Shaara was convicted of grand theft of an automobile, armed kidnapping, three counts of sexual battery with a deadly weapon, and attempted robbery. The appellate court affirmed convictions on most counts but reversed the sexual battery convictions because the jury instructi
• Richardson v. State
  523 So. 2d 746· Fla. 5th DCA· 1988-04-14 ·cited 24×
  Eddie Joe Richardson was convicted of robbery with a weapon and assault arising from a convenience store robbery. The Fifth District Court of Appeal affirmed his robbery conviction but reversed the assault conviction, holding that assault is a necessarily included lesser offense
• Altha B. Gillespie v. State
  440 So. 2d 8· Fla. 1st DCA· 1983-10-19 ·cited 24×
  A trial court properly refuses to instruct on a lesser included offense when there is no evidence to support that lesser offense and the evidence proves only the greater offense charged.
• Boland v. State
  893 So. 2d 683· Fla. 2d DCA· 2005-02-18 ·cited 23×
  Joanne Lee Boland was convicted of falsely reporting a capital felony to law enforcement in violation of Florida Statute § 837.05(2), a third-degree felony. The court reversed her conviction because the trial court erroneously refused to instruct the jury on necessarily lesser-in
• Michelson v. State
  805 So. 2d 983· Fla. 4th DCA· 2001-12-05 ·cited 21×
  Christopher Michelson was convicted of second-degree murder and vehicular homicide arising from a fatal car crash during a high-speed police pursuit following a prison escape scheme. The appellate court reversed the second-degree murder conviction due to insufficient evidence of
• Gallo v. State
  491 So. 2d 541· Fla.· 1986-07-17 ·cited 21×
  The state is entitled to have jury instructions given on necessarily included lesser offenses even if the defendant requests no such instructions and waives the right, provided the state does not consent to the waiver.
• Sanders v. State
  847 So. 2d 504· Fla. 1st DCA· 2003-03-31 ·cited 20×
  Sanders appealed the summary denial of his rule 3.850 postconviction motion claiming ineffective assistance of counsel for trial counsel's failure to request a jury instruction on a lesser included offense. The court affirmed, receding from prior precedent and holding that such a
• Roberts v. State
  242 So. 3d 296· Fla.· 2018-03-01 ·cited 18×
  The Florida Supreme Court held that a trial court commits fundamental error by failing to instruct a jury on the necessarily lesser included offense of attempted manslaughter by act when the defendant is charged with attempted second-degree murder, even without a defense request.
• Bolin v. State
  8 So. 3d 428· Fla. 2d DCA· 2009-03-20 ·cited 18×
  Oscar Ray Bolin, Jr. appeals his second-degree murder conviction, challenging the trial court's jury instruction on manslaughter. The court affirms the denial of Bolin's motion to inspect grand jury testimony but reverses and remands for a new trial because the court failed to pr
• Armad Johnson v. State
  695 So. 2d 787· Fla. 1st DCA· 1997-05-02 ·cited 18×
  The court held that the trial court committed reversible error by refusing to instruct the jury on a necessarily lesser-included offense of sexual battery, but affirmed the upward departure sentence for armed robbery.
• Paige v. State
  641 So. 2d 179· Fla. 5th DCA· 1994-08-12 ·cited 18×
  Paige was convicted of possessing cocaine with intent to sell within 200 feet of a public housing facility. After his conviction, the Florida Supreme Court struck down the statute's 'public housing facility' language as unconstitutionally vague. The appellate court reversed and r
• von Deck v. Hon. Kerry I. Evander
  622 So. 2d 1160· Fla. 5th DCA· 1993-08-20 ·cited 18×
  The court held that double jeopardy does not bar a successive prosecution for aggravated assault after acquittal on attempted murder charges, as the offenses have different essential elements under the Blockburger test.
• Newton v. State
  527 So. 2d 876· Fla. 2d DCA· 1988-06-17 ·cited 18×
  The court reversed the summary denial of Newton's ineffective assistance of counsel claim based on failure to request a jury instruction on a necessarily lesser included offense, remanding for further consideration while affirming denial of other allegations.
• Bateson v. State
  516 So. 2d 280· Fla. 1st DCA· 1987-11-05 ·cited 18×
  Trial counsel's failure to request jury instructions on necessarily lesser included offenses for a sexual battery charge constitutes ineffective assistance of counsel cognizable on post-conviction relief under Rule 3.850, where the evidence would support conviction on a lesser in
• Cooper v. State
  512 So. 2d 1071· Fla. 1st DCA· 1987-09-10 ·cited 18×
  When a defendant is charged with possession of contraband in a detention facility and the evidence at trial shows less than 20 grams of cannabis was seized, misdemeanor possession of less than 20 grams of cannabis is a permissibly lesser included offense, and the trial court must
• General Jackson Pride v. State
  511 So. 2d 1068· Fla. 1st DCA· 1987-08-24 ·cited 18×
  Appellant Jackson Pride challenges his convictions and sentences for armed burglary, sexual battery with a deadly weapon, and armed robbery across two consolidated cases. The appellate court affirms all sexual battery and burglary convictions but reverses the armed robbery convic
• Jones v. State
  492 So. 2d 1124· Fla. 3d DCA· 1986-08-05 ·cited 18×
  Daniel Jones appeals his conviction for attempted burglary, arguing the evidence proved he committed the completed offense of burglary, not merely an attempt. The Florida Third District Court of Appeal affirms, holding that trial courts may instruct juries on lesser-included offe
• Overway v. State
  718 So. 2d 308· Fla. 5th DCA· 1998-09-11 ·cited 17×
  Timothy Overway was convicted of two counts of felony child abuse for injuring his five-year-old stepson. The appellate court reversed his conviction on count I because the trial court erred in refusing to instruct the jury on the permissive lesser included offense of misdemeanor
• Miller v. State
  870 So. 2d 15· Fla. 2d DCA· 2003-08-01 ·cited 16×
  The court held that the trial court erred in denying a jury instruction on attempted robbery as a necessarily lesser included offense of attempted carjacking, requiring reversal of that conviction. Other convictions were affirmed.
• Clark v. State
  43 So. 3d 814· Fla. 1st DCA· 2010-08-25 ·cited 15×
  Darren Clark was convicted of strong-arm robbery but appeals arguing the trial court erred by refusing to instruct the jury on the lesser-included offense of robbery by sudden snatching. The Florida First District Court of Appeal holds that failure to instruct on the next immedia
• Applewhite v. State
  874 So. 2d 1276· Fla. 5th DCA· 2004-06-18 ·cited 15×
  Andre Applewhite appeals his conviction for escape and sentence as a habitual felony offender, challenging the trial court's denial of a jury instruction on resisting arrest without violence as a lesser included offense and its grant of the State's special jury instruction on esc
• Scurry v. State
  521 So. 2d 1077· Fla.· 1988-02-11 ·cited 15×
  The Florida Supreme Court held that second-degree murder is a necessarily lesser included offense of first-degree felony murder and must be available as a jury instruction. The Court reversed the district court's affirmance of a conviction where the trial judge denied an instruct
• State v. Sholl
  18 So. 3d 1158· Fla. 1st DCA· 2009-09-25 ·cited 14×
  The State appealed a trial court's dismissal of two criminal charges against John Sholl for lewd or lascivious exhibition and transmitting material harmful to minors via electronic device. The appellate court reversed, holding that each charge had sufficient factual support, the
• Bethea v. State
  767 So. 2d 630· Fla. 5th DCA· 2000-09-28 ·cited 14×
  Richard Blake Bethea appeals the summary denial of his Rule 3.850 ineffective assistance of counsel motion. The court reversed the summary denial of his claim that trial counsel failed to object when the verdict form omitted a necessarily lesser included offense of burglary, find
• Brown v. State
  608 So. 2d 114· Fla. 1st DCA· 1992-11-02 ·cited 14×
  James Brown was convicted of battery upon law enforcement officers after refusing a jury instruction on simple battery as a lesser included offense. The First District Court of Appeal reversed, holding that simple battery is a necessarily lesser included offense of battery upon a
• Kolaric v. State
  616 So. 2d 117· Fla. 2d DCA· 1993-03-24 ·cited 12×
  Kolaric appeals his convictions for battery and sexual activity with a child subject to custodial/familial authority. The court affirms the battery conviction but reverses the sexual activity conviction, holding that the trial court erred in refusing to instruct the jury on lewd
• D.L., Jr. v. State
  491 So. 2d 1243· Fla. 2d DCA· 1986-07-25 ·cited 12×
  A juvenile was charged with battery and criminal mischief but acquitted of both charges and instead convicted of disorderly conduct. The appellate court reversed, holding that disorderly conduct was neither a necessarily lesser included offense nor a proper lesser included offens
• Thompson v. State
  487 So. 2d 311· Fla. 5th DCA· 1986-02-20 ·cited 12×
  A trial court must instruct the jury on necessarily lesser included offenses when requested by defense counsel, regardless of the trial court's determination that no evidence supports a conviction on the lesser offense.
• Perkins v. The Honorable Volie A. Williams
  424 So. 2d 990· Fla. 5th DCA· 1983-01-12 ·cited 12×
  A defendant acquitted of grand theft seeks prohibition against retrial on a robbery charge arising from the same taking of property. The court holds that the Fifth Amendment double jeopardy clause bars prosecution for the greater offense of robbery after acquittal on the necessar
• L.F. v. State
  694 So. 2d 840· Fla. 2d DCA· 1997-05-28 ·cited 10×
  L.F., a juvenile, appealed his adjudication of delinquency for criminal mischief and trespass in a conveyance. The court affirmed the criminal mischief conviction but reversed the trespass conviction because the delinquency petition failed to allege all essential elements of the
• Willoughby Turner COX v. State
  618 So. 2d 291· Fla. 2d DCA· 1993-04-14 ·cited 10×
  The court held that the trial court erred in refusing to instruct the jury on simple DUI as a necessarily lesser included offense of DUI/serious bodily injury, and this error was not subject to harmless error analysis.
• Wimberly v. State
  476 So. 2d 272· Fla. 1st DCA· 1985-10-02 ·cited 10×
  A trial judge must instruct the jury on necessarily lesser included offenses to the offense charged, regardless of whether evidence supports conviction on the lesser offense, based on the jury's right to exercise its pardon power. However, the court certified the question for rev