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Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978
2002
2026
Top citers, strongest first. 50 distinct citers.
examined
Cited as authority (rule)
Atmore v. State of Florida
(4×)
also: Cited "see"
As explained below, the error here was harmless under controlling Florida law.1 Under State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978), the failure to instruct on a lesser included offense is per se reversible error only when the omitted offense is the "next immediate" lesser.
discussed
Cited as authority (rule)
State v. Emmanuel Sanchez
It explained that it was persuaded by the Florida Supreme Court’s decision in State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978), which stated: [I]f a defendant is charged with offense “A” of which “B” is the next immediate lesser-included offense (one step removed) and “C” is the next below “B” (two steps removed), then when the jury is instructed on “B” yet still convicts the accused of “A” it is logical to assume that the panel would not have found him guilty only of “C” (that is, would have passed over “B”), so that the failure to instruct on “C” is ha…
discussed
Cited as authority (rule)
Guzman v. Secretary, Department of Corrections
Stated otherwise, the trial court’s decision did not deprive “the jury . . . [of] a fair opportunity to exercise its inherent pardon power by returning a verdict of guilty as to the next lower crime.” State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978) (alterations added; quotation marks omitted).
cited
Cited as authority (rule)
Arnold Jerome Knight v. State of Florida
See State v. Montgomery, 39 So. 3d 252, 259 (Fla. 2010); Pena v. State, 901 So. 2d 781, 787 (Fla. 2005); State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978).
discussed
Cited as authority (rule)
ALVIN ARTEAGA v. STATE OF FLORIDA
We reasoned that manslaughter was a lesser included offense that is two steps removed from first-degree -7- murder and that supreme court precedent makes clear that it is not fundamental error to "fail[] to give jury instructions for an offense which is two steps removed from the offense resulting in conviction." Id. at 1199 (citing State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978)).
discussed
Cited as authority (rule)
ROGER E. CARUTHERS v. STATE OF FLORIDA
This is because the jury must be given “a fair opportunity to exercise its inherent ‘pardon’ power by returning a verdict of guilty as to the next lower crime.” State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978).
examined
Cited as authority (rule)
Christopher Dean v. State of Florida
(6×)
also: Cited "see", Cited "see, e.g."
Indeed, Justice Polston’s concurring opinion recognizes this Court’s long-standing precedent that a “trial court’s failure to give a requested jury instruction on a necessarily lesser included offense one step removed from the charged offense is per se reversible error.” Concurring op. at 10 (Polston, J., concurring) (citing State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978)).
discussed
Cited as authority (rule)
Berube v. State
In State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), the supreme court held: Only the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible.
discussed
Cited as authority (rule)
Kendrick C. Silver v. State
“As a general rule, ‘the failure to instruct on the next immediate lesser-included offense (one-step removed) constitutes error that is per se reversible.’ ” Firsher, 834 So.2d at 922 (quoting State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978)).
discussed
Cited as authority (rule)
Daniel v. State
In State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), the Florida Supreme Court held: Thus, to the extent that the broad language employed in Lomax 2 intimates that the harmless error doctrine cannot be invoked whenever there has been a failure to instruct on any lesser-included offense, it is disapproved.
discussed
Cited as authority (rule)
Haygood v. State
See State v. Lucas, 645 So.2d 425, 426-27 (Fla.1994) (holding that “when a defendant has been convicted of either manslaughter or a greater offense not more than one step removed, ... failure to explain justifiable and excusable homicide as part of the manslaughter instruction always” results in fundamental and per se reversible error, “regardless of whether the evidence could support a finding of either justifiable or excusable homicide”); State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978) (relying on need for jury to be given “a fair opportunity to exercise its inherent ‘pardon’ …
discussed
Cited as authority (rule)
Thomas v. State
As such, “it is impossible to determine whether the jury, if given the opportunity, would have ‘pardoned’ the defendant,” State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), by convicting him of attempted voluntary manslaughter under a proper instruction.
discussed
Cited as authority (rule)
McKIVER v. State
(2×)
However, “[w]here the omitted instruction relates to an offense two or more steps removed ... reviewing courts may properly find such error to be harmless.” Abreau, 363 So.2d at 1064 (emphasis add ed); accord, Pena v. State, 901 So.2d 781, 787 (Fla.2005).
discussed
Cited as authority (rule)
Preston v. State
In doing so, Preston represented that the “trial transcripts is [sic] void of any references to the elements that must be met in order to prove the second lesser included offense of burglary of a structure, and the verdict form is also void of this lesser included offense.” Because “failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible,” State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), if preserved for appellate review, cf. Johnson v. State, 53 So.3d 1003 , 2010 WL 3909859 (Fla.2010), we ordered the State to pr…
discussed
Cited as authority (rule)
Kilgore v. State
(2×)
In State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), we held that if a defendant is charged with offense “A” of which “B” is the next immediate lesser-included offense (one step removed) and “C” is the next below “B” (two steps removed), then when the jury is instructed on “B” yet still convicts the accused of “A” it is logical to assume that the panel would not have found him guilty only of “C” (that is, would have passed over “B”), so that the failure to instruct on “C” is harmless.
discussed
Cited as authority (rule)
State v. Holmes
The rationale for the rule requiring reversal when a trial court fails to instruct on a lesser offense one step removed from the conviction is that the jury must be "given a fair opportunity to exercise its inherent 'pardon' power by returning a verdict of guilty as to the next lower crime.” State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978).
cited
Cited as authority (rule)
Bryant v. State
According to State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), failure to give a requested jury instruction on a necessarily lesser-included offense is per se reversible error.
discussed
Cited as authority (rule)
Sanders v. State
The court explained the distinction as follows in State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978): [I]f a defendant is charged with offense "A" of which "B" is the next immediate lesser-included offense (one step removed) and "C" is the next below "B" (two steps removed), then when the jury is instructed on "B" yet still convicts the accused of "A" it is logical to assume that the panel would not have found him guilty only of "C" (that is, would have passed over "B"), so that the failure to instruct on "C" is harmless.
discussed
Cited as authority (rule)
Firsher v. State
As a general rule, "the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible." State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978); Roberts v. State, 694 So.2d 825, 826 (Fla. 2d DCA 1997).
discussed
Cited as authority (rule)
State v. Johnson
See, e.g., Schad v. Arizona, 501 U.S. 624, 647 , 111 S.Ct. 2491, 2505 , 115 L.Ed.2d 555 (1991)(When capital jury was given the option of finding a lesser included noncapital offense of second degree murder, "[t]he central concern of Beck [ v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980) ]," that of eliminating distortion of the factfinding process by giving the jury an all-or-nothing choice, "is simply not implicated *923 in the present case, for petitioner's jury was not faced with an all-or-nothing choice between the offense of conviction... and innocence."); Geschwendt v. …
cited
Cited as authority (rule)
Herbert Gause v. Commonwealth of Virginia
Ct. App. Div. 1991) (quoting State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978)), cited with approval in Turner, 23 Va. App. at 276 , 476 S.E.2d at 507 .
cited
Cited as authority (rule)
Johnson v. State
Sanders v. State, 707 So.2d 664, 667 (Fla.1998); Melbourne v. State, 679 So.2d 759, 764-65 (Fla.1996); State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978).
discussed
Cited as authority (rule)
Overway v. State
To support this argument the state cites to State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978), wherein our supreme court held that when a jury is instructed on the next immediate lesser included offense, it is harmless error not to instruct on an offense two steps removed from the crime charged.
discussed
Cited as authority (rule)
Wimberly v. State
In State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978), the court noted that the jury must be given a fair opportunity to exercise its inherent "pardon" power by returning a verdict of guilty as to the next lower crime.
discussed
Cited as authority (rule)
Pope v. State
Any error is presumed harmless because "[w]here the omitted instruction relates to an offense two or more steps removed ... reviewing courts may properly find such error harmless." State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978).
cited
Cited as authority (rule)
Jones v. State
State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978); see also Rojas v. State, 552 So.2d 914 , 916 n. 1 (Fla. 1989) (characterizing Abreau as having worked a "subsequent refinement" in Lomax ).
cited
Cited as authority (rule)
Morris v. State
State v. Abreau, 363 So.2d 1063, 1064 (Fla. *157 1978).
discussed
Cited as authority (rule)
Nurse v. State
(2×)
State v. Wimberly, 498 So.2d 929, 932 (Fla. 1986) ("The requirement that a trial judge must give a requested instruction on a necessarily lesser included offense is bottomed upon a recognition of the jury's right to exercise its `pardon power.'"); State v. Bruns, 429 So.2d 307, 310 (Fla. 1983); State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978).
discussed
Cited as authority (rule)
State v. Morgan
(2×)
Stated another way: "[I]f a defendant is charged with offense `A' of which `B' is the next immediate lesser-included offense *436 (one step removed) and `C' is the next below `B' (two steps removed), then when the jury is instructed on `B' yet still convicts the accused of `A' it is logical to assume that the panel would not have found him guilty only of `C' (that is, would have passed over `B'), so that the failure to instruct on `C' is harmless." Id. at 364 , 444 N.W.2d at 437 (quoting State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978)).
cited
Cited as authority (rule)
State v. Perry
Id. at 364 , 444 N.W.2d at 437 (quoting State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978)).
cited
Cited as authority (rule)
Prater v. State
State v. Abreau, 363 So.2d 1063, 1064 (Fla. 4th DCA 1978).
discussed
Cited as authority (rule)
Marshall v. State
We agree with the defendant and reverse and remand for a new trial. [1] , [2] *798 It is now well established that "[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible." Reddick v. State, 394 So.2d 417, 418 (Fla. 1981) (quoting State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978)).
discussed
Cited as authority (rule)
Edwards v. State
Oats v. State, 446 So.2d 90, 93 (Fla.1984); Johnson v. State, 393 So.2d 1069 , 1071 (Fla.1980), cert. denied, 454 U.S. 882 , 102 S.Ct. 364 , 70 L.Ed.2d 191 (1981); State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978); Alvarez v. State, 358 So.2d 10, 12 (Fla.1978); Fields v. State, 379 So.2d 408, 409 (Fla.3d DCA 1980); White v. State, 324 So.2d 115, 115-16 (Fla.3d DCA 1975), cert. dismissed, 339 So.2d 1173 (Fla.1976); Fla. R.Crim.P. 3.390(d).
discussed
Cited as authority (rule)
Linehan v. State
That is, the jury, if so instructed, could conceivably have exercised what the Florida Supreme Court referred to in State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978), as "its inherent pardon power." That so-called pardon power is a well recognized misnomer which generally means that a jury may, in a proper case, convict a defendant of a lesser offense when the jury finds that the acts of the defendant fit the statutory definitions of more than one offense.
discussed
Cited as authority (rule)
Cabe v. State
The state's response, however, overlooks the opinions of the Florida Supreme Court in State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978), holding that only the failure to instruct on a lesser included offense one step removed from the offense charged is reversible error, and its later filed opinion in State v. Thomas, 362 So.2d 1348, 1349, n. 5 (Fla. 1978), interpreting Abreau as meaning the refusal of the trial court to instruct on an attempted, lesser included offense "may be harmless if the `attempt' offense is `two steps removed' from the crime of which the defendant is convicted ... ." (em…
discussed
Cited "see"
STEVEN TROY GIBSON v. STATE OF FLORIDA
See State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 1978) (per curiam) (holding reviewing courts may properly find that error in omitting instruction on lesser included offense is harmless where the lesser offense is two or more steps removed).
discussed
Cited "see"
Lathan v. State
See State v. Abreau , 363 So.2d 1063 , 1064 (Fla. 1978) (holding that the trial court's failure to give a requested jury instruction on a necessarily included offense one step removed from the charged offense is per se reversible error but that the omission of an instruction on an offense that is two or more steps removed is subject to a harmless error analysis).
discussed
Cited "see"
Lathan v. State
See State v. Abreau , 363 So.2d 1063 , 1064 (Fla. 1978) (holding that the trial court's failure to give a requested jury instruction on a necessarily included offense one step removed from the charged offense is per se reversible error but that the omission of an instruction on an offense that is two or more steps removed is subject to a harmless error analysis).
discussed
Cited "see"
MIGUEL TIRADO v. STATE OF FLORIDA
See State v. Abreau, 363 So. 2d 1063 (Fla. 1978) (where the omitted instruction relates to an offense two or more steps removed, the reviewing courts may properly find such error to be harmless).
discussed
Cited "see"
Tirado v. State
See State v. Abreau , 363 So.2d 1063 (Fla. 1978) (where the omitted instruction relates to an offense two or more steps removed, the reviewing courts may properly find such error to be harmless).
discussed
Cited "see"
Collier v. State
See Boland v. State, 893 So.2d 683, 686 (Fla. 2d DCA 2005) (citing State v. Abreau, 363 So.2d 1063 (Fla.1978), and explaining that the ‘‘[fjailure to give a requested instruction on a category one lesser-included offense when it is only one step removed from the offense charged is per se reversible error not subject to harmless error analysis”). .
cited
Cited "see"
Hill v. State
See State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978) (“[T]he failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible.”).
cited
Cited "see"
Baker v. State
See State v. Abreau, 363 So.2d 1063 , 1064 (Fla.1978); see also Sherrer v. State, 898 So.2d 260, 261 (Fla. 1st DCA 2005).
cited
Cited "see"
SPERDUTI v. State
See State v. Abreau, 363 So.2d 1063 (Fla.1978) (holding failure to instruct jury on offense two or more steps removed from charged and convicted offense may be found to be harmless error).
discussed
Cited "see"
Riley v. State
(2×)
See State v. Abreau, 363 So.2d at 1063 ; Johnson v. State, 695 So.2d 787 (Fla. 1st DCA 1997). *3 While acknowledging the trial court erred in denying the requested instruction, the state relies on authorities recognizing that the failure to instruct on a lesser included offense two steps or more removed from the offense for which the defendant is convicted is harmless error.
STATE of Florida, Petitioner,
v.
Jesus N. ABREAU, Respondent.
v.
Jesus N. ABREAU, Respondent.
Per Curiam.
Cited by 198 opinions | Published
[*1064] Robert L. Shevin, Atty. Gen., Tallahassee, and Arthur Joel Berger, Asst. Atty. Gen., Miami, for petitioner.
Geoffrey C. Fleck of Kogen & Kogan, Miami, for respondent.
PER CURIAM.
By petition for a writ of certiorari, we are asked to review a decision of the Third District Court of Appeal, reported at 347 So.2d 819, which conflicts with DeLaine v. State, 262 So.2d 655 (Fla. 1972). We have jurisdiction, and we dispense with oral argument and with briefs on the merits.[1] The decision below was grounded on the District Court's belief that this Court in Lomax v. State, 345 So.2d 719 (Fla. 1977), "receded from DeLaine and its progeny."[2] We did not, and for that reason must quash the decision below.
For the purpose of clarification, we note that Lomax involved a trial court's failure to give a requested instruction on a lesser-included offense that was only one step removed from the offense charged, while in DeLaine, as in the present case, the trial judge gave instructions on the next immediate lesser-included offense but refused to instruct the jury on an offense two steps removed. The significance of that distinction is more than merely a matter of number or degree, since in the latter situation, unlike the former, the jury is given a fair opportunity to exercise its inherent "pardon" power by returning a verdict of guilty as to the next lower crime. For example, if a defendant is charged with offense "A" of which "B" is the next immediate lesser-included offense (one step removed) and "C" is the next below "B" (two steps removed), then when the jury is instructed on "B" yet still convicts the accused of "A" it is logical to assume that the panel would not have found him guilty only of "C" (that is, would have passed over "B"), so that the failure to instruct on "C" is harmless. If, however, the jury only receives instructions on "A" and "C" and returns a conviction on "A", the error cannot be harmless because it is impossible to determine whether the jury, if given the opportunity, would have "pardoned" the defendant to the extent of convicting him on "B" (although it may have been unwilling to make the two-step leap downward to "C").
Thus, to the extent that the broad language employed in Lomax intimates that the harmless error doctrine cannot be invoked whenever there has been a failure to instruct on any lesser-included offense, it is disapproved. Only the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible. Where the omitted instruction relates to an offense two or more steps removed, DeLaine continues to have vitality, and reviewing courts may properly find such error to be harmless.
The writ of certiorari is hereby issued, and the decision of the Third District Court of Appeal is quashed.
It is so ordered.
OVERTON, C.J., and ADKINS, ENGLAND, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.
1 Fla.App.R. 3.10(e).