Permissive Lesser Included Offense

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

• State v. Weller
  590 So. 2d 923· Fla.· 1991-11-07 ·cited 138×
  The Florida Supreme Court reviewed a Fourth District decision reversing a cocaine trafficking conspiracy conviction, addressing conflicts in Florida law regarding lesser included offenses in drug trafficking cases. The Court clarified that the Blockburger test applies to determin
• Sanders v. State
  944 So. 2d 203· Fla.· 2006-10-26 ·cited 130×
  The Florida Supreme Court held that a lesser-included offense need not result in a lesser penalty than the charged offense in order to be a proper lesser-included offense. The Court answered a certified question of great public importance regarding verdict form construction when
• Amado v. State
  585 So. 2d 282· Fla.· 1991-09-05 ·cited 110×
  The Florida Supreme Court held that a trial court erred in refusing to instruct the jury on simple possession as a lesser included offense of trafficking in cocaine when the information alleged trafficking by possession, sale, manufacture, or delivery, and evidence supported the
• Wilcott v. State
  509 So. 2d 261· Fla.· 1987-05-21 ·cited 90×
  A defendant charged with introducing or possessing contraband in a state correctional facility is entitled to a jury instruction on simple possession of less than twenty grams of cannabis as a lesser included offense when the pleadings and evidence demonstrate that the lesser off
• State v. Espinosa
  686 So. 2d 1345· Fla.· 1996-12-26 ·cited 79×
  The Florida Supreme Court held that resisting arrest without violence is a permissive lesser-included offense of resisting arrest with violence, and established that a defendant who requests such an instruction waives the right to challenge sufficiency of evidence on the lesser o
• State v. von Deck
  607 So. 2d 1388· Fla.· 1992-11-05 ·cited 72×
  The Florida Supreme Court approved a reversal of a conviction for aggravated assault where the charging information failed to allege the essential element of 'putting in fear,' holding that the State must expressly allege this element when seeking a lesser included offense instru
• Viveros v. State
  699 So. 2d 822· Fla. 4th DCA· 1997-10-01 ·cited 71×
  Viveros appealed his convictions for armed burglary with a firearm, aggravated assault with a firearm, and shooting into an occupied building arising from a shooting incident at an apartment complex clubhouse. The Fourth District Court of Appeal reversed the armed burglary convic
• Williams v. State
  957 So. 2d 595· Fla.· 2007-05-10 ·cited 68×
  The Florida Supreme Court answered a certified question of great public importance: whether lewd or lascivious battery under section 800.04(4) can be a permissive lesser included offense of sexual battery with a deadly weapon or use of force likely to cause serious personal injur
• 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
• 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
• 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
• Weatherspoon v. State
  214 So. 3d 578· Fla.· 2017-04-06 ·cited 31×
  The Florida Supreme Court held that attempted felony murder under section 782.051 is a distinct statutory crime with different elements and greater punishment than attempted premeditated murder, requiring the State to specifically charge it in the information rather than relying
• 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
• 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
• 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
• 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
• 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
• 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
• 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
• Grant v. State
  864 So. 2d 503· Fla. 4th DCA· 2004-01-07 ·cited 17×
  The court held that the defendant's claim of ineffective assistance of counsel based on a requested jury instruction for a lesser included offense, which was not properly a lesser included offense, could not be decided on direct appeal because prejudice was not apparent from the
• Nesbitt v. State
  819 So. 2d 993· Fla. 5th DCA· 2002-06-28 ·cited 17×
  Ronald Nesbitt appeals his convictions for aggravated assault and battery arising from an incident where he used a stun gun against his wife. The Fifth District affirmed, holding that because defense counsel expressly agreed to aggravated assault as a lesser included offense and
• 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
• 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
• Ellis v. State
  714 So. 2d 1160· Fla. 2d DCA· 1998-07-24 ·cited 15×
  Ricardo and Debra Ellis were convicted of aggravated child abuse based on allegations of failing to feed children and denying them medical treatment. The appellate court reversed the convictions as fundamentally erroneous because the information's body described only simple child
• McBRIDE v. State
  604 So. 2d 1291· Fla. 3d DCA· 1992-09-15 ·cited 15×
  The court held that the trial court correctly instructed the jury on a permissive lesser included offense and the lawful execution of a legal duty during an arrest.
• Lane v. State
  861 So. 2d 451· Fla. 4th DCA· 2003-09-17 ·cited 14×
  John Lane was convicted of aggravated battery as a lesser included offense of attempted second degree murder. The Fourth District Court of Appeal reversed the conviction, holding that aggravated battery should not have been submitted to the jury because the information did not al
• McCLENDON v. State
  765 So. 2d 247· Fla. 1st DCA· 2000-08-09 ·cited 14×
  The court held that the trial court erred in summarily denying two claims in the motion for postconviction relief.
• Darrin Bernard Rogers v. State
  626 So. 2d 339· Fla. 4th DCA· 1993-11-17 ·cited 14×
  The court held that the trial judge erred in denying a requested jury instruction for a lesser-included offense made during closing arguments.
• 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
• 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
• Santo Hernandez v. State
  56 So. 3d 752· Fla.· 2010-12-09 ·cited 12×
  Santo Hernandez was convicted of first-degree felony murder based on trafficking or attempted trafficking in cocaine, but the Florida Supreme Court reversed because the State failed to present sufficient evidence that Hernandez intended to buy or sell at least 28 grams of cocaine
• Chambers v. State
  975 So. 2d 444· Fla. 2d DCA· 2007-04-13 ·cited 12×
  Patrick Chambers petitioned for ineffective assistance of appellate counsel after his conviction for attempted second-degree murder, arguing his appellate counsel failed to raise that instructing the jury on aggravated assault as a lesser-included offense was fundamental error wh
• Belser v. State
  854 So. 2d 223· Fla. 1st DCA· 2003-08-12 ·cited 12×
  The trial court erred in denying the request for a jury instruction on the lesser included offense of battery, as evidence supported such a charge.
• Donovan v. State
  821 So. 2d 1099· Fla. 5th DCA· 2002-05-31 ·cited 12×
  The court held that battery was not a permissive lesser included offense of kidnapping because the charging information did not allege all elements of battery. The court affirmed the attempted sexual battery conviction.
• Schwartz Monzell Gainer v. State
  633 So. 2d 480· Fla. 1st DCA· 1994-02-23 ·cited 12×
  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
• Behn v. State
  621 So. 2d 534· Fla. 1st DCA· 1993-07-13 ·cited 12×
  Clarence Behn was convicted of manslaughter by culpable negligence for operating a truck with defective brakes and running a red light, resulting in a fatal collision. The Florida District Court of Appeal reversed, holding that the conduct did not rise to the level of culpable ne
• 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
• Hightower v. State
  488 So. 2d 106· Fla. 5th DCA· 1986-04-24 ·cited 12×
  Hightower was indicted for sexual battery of a child under 12 but convicted of the lesser offense of lewd and lascivious conduct, which the trial court improperly instructed to the jury. The Fifth District Court of Appeal reversed, holding that lewd and lascivious conduct was nei
• 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.
• Wong v. State
  212 So. 3d 351· Fla.· 2017-03-02 ·cited 11×
  Francis Wong was convicted of multiple counts of lewd or lascivious molestation and battery of minors. The Florida Supreme Court reversed the Second District Court of Appeal's decision to affirm, holding that Wong properly preserved his request for a jury instruction on the lesse
• 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
• Deangelo S. Horn v. State
  120 So. 3d 1· Fla. 1st DCA· 2012-09-19 ·cited 10×
  The court held that the trial court erred in refusing to instruct the jury on unnatural and lascivious act as a permissive lesser-included offense of lewd or lascivious molestation. However, separate convictions for sexual battery and attempted lewd or lascivious molestation do n
• Blandin v. State
  916 So. 2d 969· Fla. 2d DCA· 2005-12-14 ·cited 10×
  The appellate court reversed the conviction for attempted manslaughter of a law enforcement officer with a firearm, finding the trial court erred by not instructing the jury on attempted aggravated battery as a permissive lesser included offense.
• 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
• Russ v. State
  612 So. 2d 688· Fla. 2d DCA· 1993-01-22 ·cited 10×
  Marc Russ was convicted of trafficking in cocaine and other drug offenses. The court reversed his cocaine trafficking conviction, holding that the trial court erred by refusing to instruct the jury on simple possession of cocaine as a lesser included offense, and remanded for a n
• Garcia v. State
  976 So. 2d 676· Fla. 2d DCA· 2008-03-19 ·cited 9×
  Rolando Garcia appeals his conviction for capital sexual battery of a four-year-old child, arguing the trial court erred in denying his request for a jury instruction on lewd or lascivious molestation as a lesser included offense. The Second District Court of Appeal affirms the c
• 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
• Brown v. State
  806 So. 2d 576· Fla. 2d DCA· 2002-01-30 ·cited 9×
  The court held that dual convictions for robbery and carjacking are permissible under double jeopardy principles when the indictment for robbery lists property other than a motor vehicle. It also held that a weapon enhancement for aggravated battery was improper when the use of a