Amado v. State, 585 So. 2d 282 (Fla. 1991). · Go Syfert
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Amado v. State, 585 So. 2d 282 (Fla. 1991). Cases Citing This Book View Copy Cite
“permissive lesser included offenses are those offenses that may or may not be .lesser included offenses depending on the pleadings and the evidence presented.”
81 citation events (45 in the last 25 years) across 5 distinct courts.
Strongest positive: ROGER E. CARUTHERS v. STATE OF FLORIDA (fladistctapp, 2017-11-01)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 37 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) ROGER E. CARUTHERS v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2017 · signal: see also · quote attribution · 1 verbatim quote · confidence high
permissive lesser included offenses are those offenses that may or may not be .lesser included offenses depending on the pleadings and the evidence presented.
discussed Cited as authority (rule) Wong v. State (2×)
Fla. Dist. Ct. App. · 2015 · confidence medium
Amado v. State, 585 So.2d 282, 282-83 (Fla.1991); McKiver v. State, 55 So.3d 646, 649 (Fla. 1st DCA 2011).
discussed Cited as authority (rule) Anderson v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2011 · confidence medium
Amado v. State, 585 So.2d 282, 282 (Fla.1991).
discussed Cited as authority (rule) Harris v. State
Fla. Dist. Ct. App. · 2006 · confidence medium
We disagree and affirm as to this issue without further discussion. [3] See State v. Estevez, 753 So.2d 1 (Fla.1999); Amado v. State, 585 So.2d 282, 283 (Fla.1991) ("We still allow juries to convict on lesser offenses under our recognition of the jury's right to exercise its `pardon power.'"); 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. Baker, 456 So.2d 419 (Fla. 1984); see also Firshe…
discussed Cited as authority (rule) Moore v. State
Fla. Dist. Ct. App. · 2006 · confidence medium
As our supreme court noted: "[t]he fact that the evidence was overwhelming that the [defendant committed the crime charged] does not preclude giving the [permissive lesser-included] instruction upon request." Amado v. State, 585 So.2d 282, 283 (Fla.1991); accord Wimberly v. State, 697 So.2d 1272, 1273 (Fla. 4th DCA 1997).
discussed Cited as authority (rule) Corpstein v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
In Amado v. State, 585 So.2d 282, 283 (Fla.1991), the Florida Supreme Court held that even if the evidence is “overwhelming that the amount of drugs involved in this transaction exceeded twenty-eight grams [this] does not preclude giving the instruction upon request” because juries are permitted to convict on lesser offenses if they choose to exercise their power to pardon.
discussed Cited as authority (rule) Vickery v. State (2×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 2004 · confidence medium
See State v. Estevez, 753 So.2d 1 (Fla.1999); Amado v. State, 585 So.2d 282, 283 (Fla.1991) ("We still allow juries to convict on lesser offenses under our recognition of the jury's right to exercise its `pardon power.'") (citation omitted); 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. Baker, 456 So.2d 419 (Fla. 1984); see also Firsher v. State, 834 So.2d 921 (Fla. 3d DCA), review deni…
discussed Cited as authority (rule) Evans v. State
Fla. Dist. Ct. App. · 2002 · confidence medium
The judge shall not instruct on any lesser included offense as to which there is no evidence." Thus, "an instruction on a permissive lesser included offense should be precluded only where `there is a total lack of evidence of the lesser offense.'" Amado v. State, 585 So.2d 282, 282-83 (Fla.1991) (citing In re Use by Trial Courts of Standard Jury Instructions, 431 So.2d 594, 597 (Fla.), modified, 431 So.2d 599 (Fla.1981)).
discussed Cited as authority (rule) Suarez v. State
Fla. Dist. Ct. App. · 2001 · confidence medium
An instruction on a permissive lesser included offense is precluded only where “there is a total lack of evidence of the lesser crime.” Amado v. State, 585 So.2d 282, 282-83 (Fla.1991); see also Wimberly v. State, 697 So.2d 1272, 1273 (Fla. 4th DCA 1997).
discussed Cited as authority (rule) Wimberly v. State
Fla. Dist. Ct. App. · 1997 · confidence medium
However, in Amado v. State, 585 So.2d 282, 283 (Fla.1991), the court held that an instruction on a permissive lesser-included offense should be precluded only where there is a total lack of evidence of the lesser offense.
discussed Cited as authority (rule) State v. Espinosa
Fla. · 1996 · confidence medium
"An instruction on a permissive lesser included offense should be precluded only where `there is a total lack of evidence of the lesser offense.'" Amado v. State, 585 So.2d 282, 282-83 (Fla.1991)(quoting In re Use by Trial Courts of Standard Jury Instructions, 431 So.2d 594, 597 (Fla.), modified, 431 So.2d 599 (Fla.1981)).
cited Cited as authority (rule) Gainer v. State
Fla. Dist. Ct. App. · 1994 · confidence medium
Amado v. State, 585 So.2d 282 *482 (Fla. 1991); Hutchinson v. State, 580 So.2d 257, 260 (Fla. 1st DCA 1991), citing State v. Daophin, 533 So.2d 761 (Fla. 1988).
cited Cited "see" Vernon Stevens v. State of Florida
Fla. · 2017 · signal: see · confidence high
See Amado v. State, 585 So.2d 282, 282-83 (Fla. 1991).
discussed Cited "see" Francis Wong v. State of Florida (2×)
Fla. · 2017 · signal: see · confidence high
See Amado v. State, 585 So.2d 282, 283 (Fla. 1991).
discussed Cited "see" Dwight Parker v. State
Fla. Dist. Ct. App. · 2014 · signal: see · confidence high
See Amado v. State, 585 So.2d 282, 283 (FIa.1991) (holding that where the defendant is charged with trafficking by multiple methods including possession, the trial court must give an instruction on simple possession if requested to do so, even if there is no real dispute that the defendant possessed a trafficking amount).
examined Cited "see" Clark v. State (4×) also: Cited "see, e.g."
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Amado, 585 So.2d at 282-83 ("An instruction on a permissive lesser included offense should be precluded only where `there is a total lack of evidence of the lesser offense.'" (citation omitted)).
cited Cited "see" Robinson v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Amado v. State, 585 So.2d 282 (Fla.1991).
cited Cited "see" Boland v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Amado v. State, 585 So.2d 282 (Fla.1991).
cited Cited "see" Welsh v. State
Fla. · 2003 · signal: see · confidence high
See Amado v. State, 585 So.2d 282, 282 (Fla. 1991).
cited Cited "see" Wilson v. State
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See Amado v. State, 585 So.2d 282 (Fla.1991); see also State v. Weller, 590 So.2d 923 , 925 n. 2 (Fla.1991).
discussed Cited "see" Overway v. State (2×)
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Amado v. State, 585 So.2d 282 (Fla. 1991).
cited Cited "see" Legette v. State
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Amado v. State, 585 So.2d 282, 283 (Fla.1991); State v. Wimberly, 498 So.2d 929, 932 (Fla.1986); State v. Abreau, 363 So.2d 1063 (Fla.1978).
discussed Cited "see" Torres v. State
Fla. Dist. Ct. App. · 1997 · signal: see · confidence high
See Amado v. State, 585 So.2d 282, 282 (Fla.1991)(“An instruction on a permissive lesser included offense must be given Vhen the pleadings and the evidence demonstrate that the lesser included offense is included in the offense charged.’ ”); Williams v. State, 594 So.2d 824 (Fla. 3d DCA 1992)(same).
cited Cited "see" State v. Duarte
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See Amado v. State, 563 So.2d 736, 737 (Fla. 2d DCA 1990), quashed on other grounds, 585 So.2d 282 (Fla.1991).
discussed Cited "see" Williams v. State
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Amado v. State, 585 So.2d 282 (Fla.1991) (simple possession of cocaine held a permissive lesser included offense of trafficking in cocaine where the information alleged possession of cocaine and the evidence adduced at trial tended to establish such possession).
discussed Cited "see, e.g." Stevens v. State
Fla. Dist. Ct. App. · 2016 · signal: see also · confidence medium
As Moore itself recognized, however, the fact that a jury may choose to exercise that power does not require a trial court to give a jury instruction on a permissive lesser included offense when there is no evidence to support it. 932 So.2d at 527 (explaining that an instruction on a permissive lesser included offense is required “if the charging instrument and the evidence admitted would support a conviction on the next lesser offense” (emphasis added)); see also Amado v. State, 585 So.2d 282, 282-83 (Fla.1991) (holding, based on jury’s pardon power, that an instruction on a permissive …
discussed Cited "see, e.g." General Grant Bell v. Walter A. McNeil
11th Cir. · 2009 · signal: see also · confidence medium
Jones v. State, 666 So.2d 960, 963 (Fla.Dist.Ct.App.1996); see also Amado v. State, 585 So.2d 282, 282-83 (Fla.1991). 4 *286 The state court concluded that Bell’s counsel’s decision not to request the criminal mischief instruction was a matter of reasonable trial strategy.
discussed Cited "see, e.g." Sanders v. State
Fla. · 2006 · signal: see, e.g. · confidence medium
See, e.g., Amado v. State, 585 So.2d 282, 282-83 (Fla.1991) (reversing trial court's refusal to instruct on the permissive lesser-included offense of simple drug possession on a charge of trafficking cocaine, even though the evidence overwhelmingly showed that the amount of drugs involved exceeded twenty-eight grams).
cited Cited "see, e.g." State v. Davis
Wash. Ct. App. · 2003 · signal: see also · confidence low
See also Amado v. State, 585 So. 2d 282 (Fla. 1991); People v. Freeman, 121 Ill.
cited Cited "see, e.g." State v. Davis
Wash. Ct. App. · 2003 · signal: see also · confidence low
See also Amado v. State, 585 So.2d 282 (Fla.1991); People v. Freeman, 121 Ill.App.3d 1023 , 77 Ill.Dec. 266 , 460 N.E.2d 125 (1984).
cited Cited "see, e.g." Pepitone v. State
Fla. Dist. Ct. App. · 2003 · signal: see also · confidence low
See State v. Johnson, 601 So.2d 219, 220 (Fla.1992); see also Amado v. State, 585 So.2d 282 (Fla.1991); Russ v. State, 612 So.2d 688, 689 (Fla. 2d DCA 1993).
discussed Cited "see, e.g." Piccioni v. State (2×)
Fla. Dist. Ct. App. · 2002 · signal: see also · confidence medium
When requested by the defendant, an instruction on a category two permissive lesser-included offense must be given where "(1) the information alleges all of the statutory elements of the permissive lesser-included offense, and (2) there is some evidence adduced at trial establishing all of the elements." Wimberly v. State, 697 So.2d 1272, 1273 (Fla. 4th DCA 1997); see also Amado v. State, 585 So.2d 282, 282 (Fla.1991).
cited Cited "see, e.g." Henig v. State
Fla. Dist. Ct. App. · 2002 · signal: see also · confidence low
Jones v. State, 666 So.2d 960, 963 (Fla. 3d DCA 1996); see also Amado v. State, 585 So.2d 282 (Fla.1991).
discussed Cited "see, e.g." State v. Estevez
Fla. · 1999 · signal: see, e.g. · confidence medium
See, e.g., Amado v. State, 585 So.2d 282, 283 (Fla.1991); Potts v. State, 430 So.2d 900, 903 (Fla.1982); State v. Abreau, 363 So.2d 1063 , 1064 (Fla.1978); Date v. *5 State, 528 So.2d 547, 547-48 (Fla. 3d DCA 1988).
cited Cited "see, e.g." Perez v. State
Fla. Dist. Ct. App. · 1998 · signal: see also · confidence low
See also Amado v. State, 585 So.2d 282 (Fla.1991).
cited Cited "see, e.g." Wilcox v. State
Fla. Dist. Ct. App. · 1996 · signal: see also · confidence low
See also Amado v. State, 585 So.2d 282 (Fla. 1991); St.
discussed Cited "see, e.g." Jones v. State
Fla. Dist. Ct. App. · 1996 · signal: see also · confidence medium
Accord State v. Terry, 336 So.2d 65, 67-68 (Fla. 1976) (applying rule to permissive, as well as necessarily, lesser included offense); see also Amado v. State, 585 So.2d 282, 282-83 (Fla. 1991) (instruction required, when requested, on permissive lesser included offense unless "`there is a total lack of evidence of the lesser offense.'") (citation omitted).
Retrieving the full opinion text from the archive…
Ernesto AMADO, Petitioner,
v.
STATE of Florida, Respondent.
76209.
Supreme Court of Florida.
Sep 5, 1991.
585 So. 2d 282
McDonald.
Cited by 60 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 83%
Citer courts: District Court of Appeal of Fl… (1)

James Marion Moorman, Public Defender and Kevin Briggs, Asst. Public Defender, Bartow, for petitioner.

Robert A. Butterworth, Atty. Gen. and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for respondent.

McDONALD, Judge.

We review Amado v. State, 563 So.2d 736 (Fla. 2d DCA 1990), because of direct conflict with Essex v. State, 539 So.2d 559 (Fla. 4th DCA 1989). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash the opinion under review.

Amado was convicted of trafficking in cocaine. The issue we address is whether the trial court committed reversible error in denying Amado's request to instruct the jury on simple possession as a lesser included offense of trafficking in cocaine.

In State v. Daophin, 533 So.2d 761 (Fla. 1988), we held that possession is not a necessarily lesser included offense of trafficking. The information in Daophin did not allege trafficking by possession, but in the instant case the information alleged trafficking by sale, manufacture, delivery, or possession. While this pleading does not affect our ruling that possession is not a necessarily lesser included offense, it does make possession a permissible lesser included offense if the evidence supports it.

Permissive lesser included offenses are those offenses that may or may not be lesser included offenses depending on the pleadings and the evidence presented. Wilcott v. State, 509 So.2d 261, 262 (Fla. 1987). An instruction on a permissive lesser included offense must be given "when the pleadings and the evidence demonstrate that the lesser offense is included in the offense charged." Id. In the instant case, the district court held that simple possession is a permissive lesser included offense of trafficking, but ruled that the evidence did not support the instruction. Contrary to the district court's decision, we find that the evidence presented at trial supports simple possession.

An instruction on a permissive lesser included offense should be precluded[*283] only where "there is a total lack of evidence of the lesser offense." In re Use by Trial Courts of Standard Jury Instructions, 431 So.2d 594, 597 (Fla.), modified, 431 So.2d 599 (Fla. 1981). As there was no such absence of evidence in the instant case, the trial court committed reversible error in refusing the requested instruction on simple possession. The fact that the evidence was overwhelming that the amount of drugs involved in this transaction exceeded twenty-eight grams does not preclude giving the instruction upon request.[*] We still allow juries to convict on lesser offenses under our recognition of the jury's right to exercise its "pardon power." State v. Wimberly, 498 So.2d 929 (Fla. 1986).

The decision under review is quashed. The cause is remanded with instructions to vacate the judgment of guilt and order a new trial. We approve Essex. To the extent it conflicts herewith, we recede from Gilford v. State, 313 So.2d 729 (Fla. 1975).

It is so ordered.

SHAW, C.J., and OVERTON, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur.

[*] The only controversy on the amount of drugs involved was whether it weighed 56 or 58 grams.