At page 340 Robert A. Butterworth, Atty. Gen., Tallahassee, and Edward L. Giles, Asst. Atty. Gen., West Palm Beach, for appellee. FARMER, Judge. We reverse defendant's…2 citing cases
- Kevin Broome v. State of Florida, 168 So. 3d 335 (Fla. 1st DCA 2015).publishedSee Curington v. State, 704 So.2d 1137, 1140 (Fla. 5th DCA 1998); Ramsaran v. State, 664 So.2d 1106, 1107 (Fla. 4th DCA 1995); Rogers v. State, 626 So.2d 339, 340 (Fla. 4th DCA 1993); Williams v. State, 597 So.2d 377, 379 (Fla. 2d DCA 1992…
- Ramsaran v. State, 664 So. 2d 1106 (Fla. 4th DCA 1995).publishedSee Fla. R.Crim.P. 3.390(d); Rogers v. State, 626 So.2d 339, 340 (Fla. 4th DCA 1993); Williams v. State, 597 So.2d 377, 379 (Fla. 2d DCA 1992).
Other citing cases
- Murphy v. State, 684 So. 2d 267 (Fla. 4th DCA 1996).published
v.
STATE of Florida, Appellee.
John D. Bruhn of Bruhn and Moore, Fort Pierce, for appellant.
[*340] Robert A. Butterworth, Atty. Gen., Tallahassee, and Edward L. Giles, Asst. Atty. Gen., West Palm Beach, for appellee.
FARMER, Judge.
We reverse defendant's two-count conviction for possession with intent to sell cocaine,[1] and for simple possession of cocaine.[2] During his closing argument and after the jury had been charged, defendant's counsel asked the court for a jury instruction on the lesser-included charge of simple possession as to count I, possession with intent to sell or deliver. The trial judge denied the request, pointing out that he had not asked for it at the charge conference. This was error.
The requested instruction was for a "permissive" lesser-included offense under the standard jury instructions for count I. See Fla.Std.Jury Instr. (Crim.) (Category 2) [300]. Category 2 includes those offenses which may, or may not, be included in the offense charged, depending on the pleadings and proof. In this instance, count I was framed in the conjunctive, charging defendant with both sale of cocaine and possession with intent to sell cocaine. Hence, the precise charge in this case required a lesser-included instruction on simple possession, if requested, as part of the charge for count I.
Although the instruction was not requested at the charge conference, that oversight is no basis to deny a request — made during closing argument and then again after the jury charge itself — to give the lesser-included instruction. See Fla.R.Crim.P. 3.390; Thomas v. State, 591 So.2d 259 (Fla. 4th DCA 1991). The failure to give an authorized and requested lesser-included instruction is reversible error. Amado v. State, 585 So.2d 282 (Fla. 1991).
REVERSED FOR NEW TRIAL.
DELL, C.J., and STONE, J., concur.