New York Criminal Lawyer Blog
Appellant was charged with and convicted of robbery of property having a value of less than $100. He raises four points on appeal, one of which requires discussion and reversal. A Palm Beach Petit Larceny Lawyer said that, although the evidence presented at trial would have supported a conviction of petit larceny, appellant’s request for a jury instruction on that crime was denied. In a 1979 case, the Court held that larceny is necessarily included in the crime of robbery and that it is legally impossible to prove robbery without proving larceny.
The issue in this case is whether appellant is entitled to the reversal of his conviction for robbery.
The Court held that the Florida Rule of Criminal Procedure 3.510 expressly requires the trial court to charge the jury on any offense which is necessarily included in the offense charged. Appellee concedes it was an error not to do so, but argues the error was harmless. The Supreme Court held that it is reversible error per se not to instruct on the next immediate lesser included offense, while it may be harmless error not to instruct on an offense two steps removed from the offense charged. In reference to the charge sub judice “the determination of whether the refusal to instruct on larceny was reversible error would depend upon an application of the case to the facts of what transpired in the trial court.” Here, a New York Criminal Lawyer said there was neither charge nor evidence of property having a value of $100 or more. Consequently, petit larceny was the next immediate lesser included offense and the trial court committed reversible error when it failed to instruct on said crime.
The Court disagrees with appellee’s argument that the trial court’s failure to instruct on petit larceny was harmless error because the jury was charged as to attempted robbery, which appellee contends was one step removed from the crime charged. The “one step” test in the cited case, applies to necessarily included offenses as that category is described in a 1968 case, and Florida Rule of Criminal Procedure 3.510. Attempts are a category separate from necessarily included offenses in the foregoing rule as well as in the 1968 case. The Court notes in that case that the Supreme Court has tentatively agreed with the recent recommendations made by the Committee on Standard Jury Instructions in Criminal Cases to consolidate the four categories of lesser included offenses articulated in the 1968 case into two. A Suffolk County Criminal Lawyer said the distinction will still be made between offenses necessarily included in the offense charged, which will become category one, and attempts, which will be part of the other category. In the Matter of the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, Sub judice the charge was properly given on the separate offense of attempted robbery, but this did not cure the harmful error in not also charging on the necessarily included offense of larceny.
The Court adheres to its original opinion but certify the following question to the Supreme Court of Florida pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v) as being of great public importance: If a defendant is convicted by overwhelming evidence of a greater offense, and the jury is instructed on an attempt to commit that offense, is the failure to instruct on the next lesser included offense, which carries a penalty less than the attempt, harmless error? In addition, the Court holds that appellant’s first point; namely, the trial court’s failure to give jury instructions on penalties, is further ground for reversal.
Accordingly, the Court held that the judgment of conviction is reversed and remanded for new trial.
The Florida Rule of Criminal Procedure 3.510 expressly requires the trial court to charge the jury on any offense which is necessarily included in the offense charged. If you have been convicted of a crime of petit larceny, sex crimes or drug offense, you will need the help of Stephen Bilkis and Associates.