Permissive Lesser Included Offense

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

• Laney v. Sec'y, Dep't of Corr. (Polk County)
  M.D. Fla.· 2025-05-30
  The court held that the state court's denial of the petitioner's claims of ineffective assistance of counsel was reasonable and not contrary to federal law.
• Benny Boyd Mooney v. State
  Fla. 1st DCA· 2025-02-12
  The trial court properly denied Mooney's motion for judgment of acquittal because circumstantial evidence sufficiently established that Mooney shot the victim with ill will, hatred, spite, or evil intent, satisfying the depraved mind element of attempted second-degree murder. The
• Benny Boyd Mooney v. State
  Fla. 1st DCA· 2024-12-18
  Benny Mooney appeals his conviction and life sentence for attempted second-degree murder, challenging the denial of his motion for judgment of acquittal, the rejection of a lesser-included offense instruction for aggravated assault with a deadly weapon, and the imposition of a $1
• Melton v. State
  Fla. 1st DCA· 2024-06-12
  An alleged error regarding whether a structure was occupied in a burglary prosecution is an issue regarding the elements of the offense, not a sentencing error, and therefore cannot be raised via a Rule 3.800(b) motion.
• Melton v. State
  Fla. 1st DCA· 2024-03-27
  A defendant cannot preserve a challenge to whether an information properly charged a permissive lesser included offense by filing a rule 3.800(b)(2) motion, as such motions address sentencing errors, not the merits of convictions. No fundamental error occurred where the defendant
• Bright v. Sec'y, Fla. Dep't of Corr. (Duval County)
  M.D. Fla.· 2024-02-23
  Corey Bright, convicted of aggravated assault with a firearm for his role in a fatal shooting in Jacksonville, Florida, filed a federal habeas corpus petition challenging his twenty-three-year sentence on grounds including ineffective assistance of counsel and insufficient eviden
• Nixon v. State
  Fla. 1st DCA· 2022-04-06
  Nathan Nixon appeals a conviction for three counts of sexual battery on a victim under age twelve, arguing that his appellate counsel was ineffective for failing to raise certain arguments on direct appeal. The court affirms the conviction and rejects Nixon's ineffective assistan
• Reggie Eugene Allen v. State
  Fla.· 2021-09-23
  The Florida Supreme Court answered a certified question regarding whether sexual battery under § 794.011(5) is a necessarily lesser included offense of capital sexual battery under § 794.011(2)(a). The Court held that it is not, because sexual battery requires a victim age twelve
• Woods v. Fla. Dep't of Corr.
  S.D. Fla.· 2021-04-08
  The court adopted the Magistrate Judge's report, finding that the Petitioner's double jeopardy claim failed because the prior charge was dismissed before jeopardy attached and that retrial after a conviction reversal for evidentiary error is permissible.
• 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.
• Earnest v. State
  Fla. 1st DCA· 2020-04-01
  The appellate court affirmed the convictions and sentences of Anthony Devon Earnest. The court found no abuse of discretion in the trial court's denial of a mistrial based on an alleged discovery violation and no error in refusing to instruct the jury on battery as a lesser inclu
• Tatara v. Sec'y, Dep't of Corr.
  M.D. Fla.· 2020-01-16
  David Tatara was convicted of second-degree murder in the death of a 15-month-old child despite the trial court granting his motion for acquittal on the charged count of first-degree felony murder. The federal district court rejected Tatara's habeas challenges to his conviction,
• J. F. v. State
  Fla. 2d DCA· 2019-12-11
  The appellate court reversed a delinquency finding for lewd or lascivious conduct because it was not a lesser included offense of the charged crime of attempted sexual battery on a child. The court remanded the case for the trial court to determine if the evidence supported a fin
• Caruthers v. State
  235 So. 3d 931· Fla. 4th DCA· 2017-11-01
  Roger Caruthers was convicted of two counts of aggravated assault with a firearm after being charged with attempted first-degree murder. The Fourth District reversed and remanded for a new trial, holding that the trial court committed per se reversible error by refusing to instru
• Garcia v. State
  143 So. 3d 1105· Fla. 2d DCA· 2014-08-01
  Garcia was convicted of capital sexual battery and sentenced to life imprisonment based on a jury instruction that allowed conviction based on "union" with the victim's vagina rather than the statutory requirement of "penetration." The appellate court reversed, finding fundamenta
• K.D. v. State
  69 So. 3d 1020· Fla. 3d DCA· 2011-09-14
  K.D., a juvenile, was adjudicated delinquent for trespass in a conveyance as a lesser included offense of grand theft. The appellate court reversed, holding that the charging document failed to allege an essential element of trespass in a conveyance—that K.D. willfully entered or
• Wallace v. State
  66 So. 3d 1086· Fla. 3d DCA· 2011-08-17
  The court held that the evidence did not prove strong-arm robbery but did establish guilt of battery, a permissive lesser included offense.
• Hoswell v. State
  45 So. 3d 71· Fla. 4th DCA· 2010-09-15
  The court held that the appellant's second motion for rehearing and motion for rehearing en banc are unauthorized and stricken, and that his repetitive claims are an abuse of procedure and beyond the scope of the appeal.
• A.D. v. State
  15 So. 3d 831· Fla. 2d DCA· 2009-07-24
  A.D. was charged with felony child abuse in juvenile court, but after the trial court granted her motion for judgment of acquittal on that charge, it found her guilty of the lesser-included offense of contributing to the delinquency or dependency of a child. The appellate court r
• Carrin v. State
  980 So. 2d 604· Fla. 1st DCA· 2008-05-05
  On remand from the Florida Supreme Court, the First District Court of Appeal reversed Raymond Carrin's conviction for aggravated assault on a law enforcement officer and remanded for a new trial on the lesser charge of culpable negligence, holding that section 924.34 cannot allow
• Youmans v. State
  846 So. 2d 670· Fla. 4th DCA· 2003-06-04
  Alfonso Youmans was convicted of aggravated manslaughter and aggravated child abuse in the death of his girlfriend's 20-month-old son. The Fourth District Court of Appeal affirmed the manslaughter conviction but reversed the aggravated child abuse conviction, holding that the tri
• Giles Levesque v. State
  778 So. 2d 1049· Fla. 4th DCA· 2001-02-14
  Giles Levesque was charged with second degree murder but convicted of aggravated battery after a jury trial. The Fourth District Court of Appeal reversed his conviction, holding that the trial court erred in instructing the jury on aggravated battery as a lesser included offense
• Gregg v. State
  724 So. 2d 158· Fla. 5th DCA· 1998-12-18
  An attempt instruction may be given to a jury even if the charging document alleges only the completed offense, provided evidence supports the attempt and the rule does not require the attempt be specifically pleaded in the information.
• Fleehearty v. State
  712 So. 2d 396· Fla. 4th DCA· 1998-03-11
  Appellant Fleehearty appeals his convictions for felony fleeing/eluding and resisting arrest with violence, challenging the trial court's failure to instruct the jury on a lesser included offense of resisting arrest without violence. The court affirms, holding that where a defend
• Crevitz v. State
  673 So. 2d 168· Fla. 3d DCA· 1996-05-15
  Crevitz was convicted of resisting an officer with violence, but the trial court improperly refused to instruct the jury on the lesser included offense of resisting without violence. The appellate court reversed because case law establishes this is a permissive lesser included of
• Kellom v. State
  643 So. 2d 92· Fla. 3d DCA· 1994-10-05
  A defendant is not entitled to a jury instruction on possession of heroin as a lesser included offense when the accusatory pleading only charges sale and/or delivery of heroin.
• Cedell Henderson v. State
  594 So. 2d 336· Fla. 1st DCA· 1992-02-27
  The court held that instructing the jury on a permissive lesser included offense, to which defense counsel affirmatively agreed and did not object, does not constitute fundamental error, even if the offense is not technically a lesser included offense.