Permissive Lesser Included Offense

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

• Italo Funiciello v. State
  179 So. 3d 388· Fla. 5th DCA· 2015-11-06 ·cited 8×
  Italo Funiciello appeals his convictions for two counts of lewd or lascivious battery. The Fifth District Court of Appeal reversed, holding that the trial court reversibly erred by refusing to instruct the jury on the permissive lesser-included offense of unnatural and lascivious
• Wykiza L. Brock v. State
  954 So. 2d 87· Fla. 1st DCA· 2007-04-19 ·cited 8×
  Appellant was convicted of attempted sexual battery following a jury trial. The Florida appellate court reversed the conviction, holding that the trial court abused its discretion by instructing the jury on attempted sexual battery as a lesser-included offense when the evidence e
• Sims v. State
  740 So. 2d 1256· Fla. 1st DCA· 1999-09-09 ·cited 8×
  The court held that a claim of ineffective assistance of counsel based on an improper jury instruction on a lesser included offense is sufficient to warrant further review if the indictment does not allege the necessary elements of that offense.
• Duval v. State
  688 So. 2d 1002· Fla. 2d DCA· 1997-02-28 ·cited 8×
  Michelle Duval was convicted of robbery and other charges. On appeal, the Florida District Court of Appeal reversed her robbery conviction, finding that the trial court erred by refusing to instruct the jury on the lesser included offense of resisting a merchant.
• Garcia v. State
  574 So. 2d 240· Fla. 1st DCA· 1991-01-31 ·cited 8×
  Garcia was convicted of second-degree murder and sentenced to life imprisonment. The appellate court reversed the conviction and vacated the sentence because the trial court erroneously refused to give a jury instruction on third-degree felony murder, which was supported by the e
• In re Standard Jury Instructions IN Crim. Cases-Report NO. 2010-04
  53 So. 3d 1017· Fla.· 2011-01-06 ·cited 7×
  The Court authorizes the publication and use of the amended standard jury instruction for Felony Murder – First Degree, as proposed by the Committee.
• Higgs v. State
  948 So. 2d 1024· Fla. 2d DCA· 2007-02-23 ·cited 7×
  James Higgs appeals his convictions for fleeing to elude at high speed and other related driving offenses, arguing the trial court erred in refusing to instruct the jury on the permissive lesser included offense of reckless driving. The appellate court affirms, holding that altho
• Handy Watkins v. State
  632 So. 2d 184· Fla. 3d DCA· 1994-02-15 ·cited 7×
  The defendant was convicted of aggravated battery as a lesser-included offense to a second-degree murder charge. The court reversed because the jury instruction on aggravated battery lacked support in the accusatory pleading, violating the requirement that both the pleading and e
• Stevens v. State
  226 So. 3d 787· Fla.· 2017-09-14 ·cited 6×
  The Florida Supreme Court resolved a conflict between district courts regarding whether a defendant charged with first-degree arson is entitled to a jury instruction on second-degree arson when the evidence undisputedly shows the burned structure was a dwelling. The Court held th
• Lucas v. State
  192 So. 3d 1269· Fla. 2d DCA· 2016-06-10 ·cited 6×
  The trial court erred in refusing to instruct the jury on a permissive lesser included offense when requested by the defense and supported by evidence.
• Piggott v. State
  140 So. 3d 666· Fla. 4th DCA· 2014-06-04 ·cited 6×
  Brian Piggott was convicted of aggravated battery with a deadly weapon for striking a victim with his automobile. The Fourth District Court of Appeal reversed his conviction, holding that the trial court erred in denying his request for a jury instruction on reckless driving as a
• Barnett v. State
  45 So. 3d 963· Fla. 3d DCA· 2010-10-13 ·cited 6×
  Ronald Barnett appeals his conviction for lewd and lascivious molestation of a minor. The Florida District Court of Appeal affirms, rejecting Barnett's arguments that the trial court erred in refusing a lesser-included offense instruction on simple battery, in sustaining a hearsa
• Lowman v. Moore
  744 So. 2d 1210· Fla. 2d DCA· 1999-11-10 ·cited 6×
  Ronnie Lowman petitioned for habeas corpus based on ineffective assistance of appellate counsel, arguing his conviction for lewd and lascivious assault on a child under 16 was defective because the victim was actually 16 years old at the time of the offense. The court granted rel
• Pierce v. State
  641 So. 2d 439· Fla. 4th DCA· 1994-08-10 ·cited 6×
  Pierce was charged with armed robbery but convicted of the lesser included offense of grand theft. The court reversed because the charging document failed to allege the value of stolen property, which is an essential element of grand theft, making grand theft an impermissible les
• Ammons v. State
  623 So. 2d 807· Fla. 1st DCA· 1993-08-30 ·cited 6×
  Johnny Lee Ammons was convicted of aggravated battery with a firearm after being charged with attempted first degree murder. The Florida appellate court reversed because the trial court erred in refusing to instruct the jury on the lesser included offense of discharging a firearm
• Stoffel v. State
  247 So. 3d 89· Fla. 1st DCA· 2018-05-16 ·cited 5×
  Battery is not a proper lesser-included offense of lewd or lascivious molestation because a parent or person in loco parentis cannot commit battery against a child through non-abusive touching; any lewd touching by such a person constitutes molestation rather than battery. The tr
• Fleming v. State
  227 So. 3d 1254· Fla. 2d DCA· 2017-09-27 ·cited 5×
  The court held that Fleming's convictions for sexual battery and lewd or lascivious battery violated double jeopardy because they arose from the same criminal episode and were not predicated on distinct acts, with lewd battery being a lesser included offense.
• Wong v. State
  184 So. 3d 1122· Fla. 2d DCA· 2015-09-11 ·cited 5×
  Francis Wong appeals his convictions for lewd or lascivious molestation and battery of minors. The Florida District Court of Appeal affirms, holding that Wong's trial counsel failed to preserve a jury instruction issue for appeal because counsel neither obtained an explicit rulin
• State v. Jarvis Gerrard Green
  149 So. 3d 1146· Fla. 2d DCA· 2014-06-18 ·cited 5×
  The State appealed a trial court's order that reduced Green's burglary conviction to trespass based on a motion for judgment of acquittal. The Florida District Court of Appeal reversed, holding that trespass is only a permissive lesser-included offense of burglary, not a necessar
• Williams v. State
  199 So. 3d 424· Fla. 2d DCA· 2016-08-24 ·cited 4×
  Fabian Williams was convicted of felony murder, robbery with a firearm, and two counts of attempted robbery arising from an armed robbery that resulted in a death. The appellate court reversed the attempted robbery conviction against one victim for insufficient evidence and rever
• Dean v. State
  199 So. 3d 932· Fla. 4th DCA· 2016-05-18 ·cited 4×
  Christopher Dean was convicted of burglary and second-degree felony murder after his co-perpetrator was killed by the burglary victim during their escape. The court affirmed, holding that manslaughter was not a necessarily lesser included offense of second-degree felony murder un
• Montez Anderson v. State
  70 So. 3d 611· Fla. 1st DCA· 2011-03-31 ·cited 4×
  The appellate court reversed a conviction for attempted second-degree murder and remanded for a new trial due to a fundamental error in jury instructions regarding attempted manslaughter, and also addressed the issue of whether the trial court should have instructed on aggravated
• Brumit v. State
  971 So. 2d 205· Fla. 4th DCA· 2007-12-31 ·cited 4×
  Jody Brumit petitioned for habeas corpus relief after her conviction for aggravated child abuse was reversed on direct appeal and remanded for resentencing on the lesser offense of child abuse. The court granted her petition, holding that her similarly situated co-defendant Festa
• Festa v. State
  927 So. 2d 1049· Fla. 4th DCA· 2006-05-10 ·cited 4×
  A defendant cannot be retried for a lesser included offense if that offense was not presented to the jury in the original trial, even if the conviction was reversed due to insufficient evidence.
• Jackson v. State
  920 So. 2d 737· Fla. 5th DCA· 2006-02-10 ·cited 4×
  Jackson appealed his convictions for lewd and lascivious battery and interference with child custody, challenging the trial court's denial of a jury instruction on simple battery as a lesser included offense. The Fifth District Court of Appeal held that the defendant was entitled
• Stuckey v. State
  907 So. 2d 1208· Fla. 5th DCA· 2005-06-17 ·cited 4×
  Stuckey was convicted of robbery for taking DVDs from Sam's Club while resisting employees' efforts to stop him. The court reversed, holding that he was entitled to a jury instruction on the lesser included offense of resisting a merchant, despite the State's charging document fa
• Whyte v. State
  881 So. 2d 1183· Fla. 5th DCA· 2004-08-27 ·cited 4×
  David Whyte was convicted of aggravated battery with a firearm as a lesser included offense of attempted second degree murder arising from shooting his wife. The court reversed the conviction on count I and remanded to reinstate the conviction on count II, finding the trial court
• Clarke v. State
  600 So. 2d 510· Fla. 3d DCA· 1992-06-09 ·cited 4×
  James Clarke appeals his conviction for aggravated assault on a law enforcement officer and a restitution order. The appellate court reversed the conviction, holding that the trial court committed reversible error by refusing to instruct the jury on a lesser included offense that
• Williams v. State
  594 So. 2d 824· Fla. 3d DCA· 1992-02-25 ·cited 4×
  The court held that the trial court committed reversible error by refusing to instruct the jury on the permissive lesser included offense of sale of cocaine.
• Anderson v. State
  247 So. 3d 680· Fla. 1st DCA· 2018-05-25 ·cited 3×
  A trial court does not err in refusing to instruct the jury on a lesser-included offense when the charging document fails to allege all statutory elements of that offense, regardless of whether evidence at trial establishes those elements. The charging document, not trial evidenc
• Pittman v. State
  22 So. 3d 859· Fla. 3d DCA· 2009-12-09 ·cited 3×
  James Pittman was convicted of lewd or lascivious battery as a lesser included offense to the charged crime of sexual battery, but the information filed against him did not allege the specific age range required for the lesser offense. The court reversed his conviction, holding t
• Williams v. State
  922 So. 2d 418· Fla. 2d DCA· 2006-03-10 ·cited 3×
  The Florida District Court of Appeal addressed whether lewd or lascivious battery under the amended § 800.04(4) can be a permissive lesser included offense of sexual battery under § 794.011(3). The court held that following the 1999 legislative amendments removing language expres
• 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
• McCLOUD v. State
  60 So. 3d 1094· Fla. 4th DCA· 2011-04-13 ·cited 2×
  Terrance McCloud was convicted of burglary of a dwelling, but the trial court erroneously refused to instruct the jury on the lesser-included offense of trespass despite defense counsel's request. The appellate court reversed because the charging document contained all elements o
• Hadnot v. State
  956 So. 2d 1206· Fla. 5th DCA· 2007-05-18 ·cited 2×
  The court held that the trial court did not err in instructing the jury on resisting an officer without violence, as the evidence supported the charge and the defendant did not preserve the issue of fundamental error.
• Clark v. State
  920 So. 2d 634· Fla. 4th DCA· 2005-05-04 ·cited 2×
  Willie Lee Clark was convicted of both escape and resisting arrest without violence based on the same conduct. The Fourth District Court of Appeal held that these are separate offenses under Florida's double jeopardy analysis and affirmed both convictions, finding that the offens
• Wardell v. State
  901 So. 2d 289· Fla. 5th DCA· 2005-04-29 ·cited 2×
  Christopher Wardell appealed his conviction for trafficking in hydrocodone, raising issues about a search warrant, trial testimony violating a stipulation, and a jury instruction on simple possession. The Florida District Court of Appeal reversed the conviction, holding that the
• Espinosa v. State
  690 So. 2d 656· Fla. 5th DCA· 1997-03-14 ·cited 2×
  The court held that the trial court must determine if the evidence presented at trial was sufficient to convict the defendant for the greater offense of resisting an officer with violence, even though the jury convicted him of a lesser offense.
• O'Neal v. State
  678 So. 2d 922· Fla. 1st DCA· 1996-08-30 ·cited 2×
  The trial court's refusal to give a requested jury instruction on a permissive lesser included offense constitutes reversible error when the pleadings and evidence support such an instruction.
• T.Y. v. State
  660 So. 2d 771· Fla. 3d DCA· 1995-09-13 ·cited 2×
  T.Y., a juvenile, was acquitted of robbery but adjudicated delinquent for both petit theft and assault as lesser included offenses. The Florida Third District Court of Appeal held that trial courts in juvenile delinquency cases may only convict of necessarily lesser included offe
• Harris v. State
  650 So. 2d 211· Fla. 3d DCA· 1995-02-15 ·cited 2×
  Joseph Harris appealed his conviction for aggravated assault with a firearm and improper exhibition of a firearm, challenging the trial court's reduction of the greater charge to a permissive lesser included offense and an allegedly improper witness reference to his arrest. The a
• Patterson v. State
  637 So. 2d 955· Fla. 4th DCA· 1994-06-01 ·cited 2×
  Patterson appeals his aggravated battery with a firearm conviction, arguing the trial court erred by refusing to instruct the jury on improper exhibition of a weapon as a lesser included offense. The appellate court affirmed, holding that no such instruction was required because
• Fawcett v. State
  595 So. 2d 1105· Fla. 5th DCA· 1992-03-27 ·cited 2×
  The court affirmed the conviction but certified two questions of great public importance regarding jeopardy and jury instructions for permissive lesser included offenses.
• White v. State
  226 So. 3d 349· Fla. 5th DCA· 2017-09-01 ·cited 1×
  The court held that the postconviction court erred in summarily denying relief on grounds three and four without either attaching conclusive refuting records or conducting an evidentiary hearing.
• Kelley v. State
  204 So. 3d 37· Fla. 1st DCA· 2016-09-06 ·cited 1×
  Appellant Kelley was charged with lewd or lascivious battery and conduct against child victims. The trial court refused to instruct the jury on the permissive lesser-included offense of unnatural and lascivious act despite Kelley's request, constituting reversible error requiring
• Reno v. State
  121 So. 3d 1174· Fla. 1st DCA· 2013-09-23 ·cited 1×
  The court reversed Appellant's conviction for attempted second-degree murder due to insufficient evidence of the depraved mind element and remanded for entry of judgment on the lesser-included offense of improper exhibition of a firearm.
• State v. Daniels
  826 So. 2d 1045· Fla. 5th DCA· 2002-08-23 ·cited 1×
  A trial court cannot grant post-conviction relief on grounds not raised by the defendant, and counsel is not required to obtain express consent for tactical decisions regarding lesser included offense instructions.
• Wilson v. State
  749 So. 2d 516· Fla. 5th DCA· 1999-12-03 ·cited 1×
  Freddie Wilson appeals his conviction for DUI manslaughter and related offenses, challenging the trial court's refusal to instruct the jury on vehicular homicide as a lesser included offense and arguing his reckless driving sentence exceeded the statutory maximum. The court affir
• Khanh D. Lavalley v. State
  633 So. 2d 1126· Fla. 5th DCA· 1994-03-11 ·cited 1×
  LaValley was charged with aggravated assault using a vehicle as a deadly weapon. After the trial court instructed the jury on reckless driving as a lesser included offense, the jury convicted LaValley of reckless driving. The appellate court affirmed, holding that the charge on r
• Gould v. State
  577 So. 2d 1302· Fla.· 1991-03-21 ·cited 1×
  The Florida Supreme Court held that section 794.011(5) sexual battery is not a necessarily included lesser offense of section 794.011(4)(a) sexual battery on a physically helpless victim because the former requires proof of actual physical force while the latter does not. The cou