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Court Discusses Jury Instruction for Lesser Included Offenses


An accused man appeals his conviction for the offense of robbery with a deadly weapon, urging that the trial court erred in refusing to give requested jury instructions on the lesser included offenses of robbery with a weapon, robbery without a weapon, and petit larceny. A New York Criminal Lawyer said the court agrees with his position, reverse the conviction, and remand the case for new trial.

In declining to give the requested instructions, the trial court explained that there was no evidence to support an instruction on any crime other than that charged. The state argues that the lower court’s decision was justified, as the court was not obliged to instruct on any lesser included offense as to which there is no evidence. What the state and the lower court have apparently overlooked, however, is that in any case in which there is sufficient proof of the greater offense to go to the jury, there is inescapably proof of a lesser offense which is necessarily included within the offense charged. The conclusion is self-evident from a reading of the Florida Supreme Court’s seminal decision on lesser included offenses.

The facts reveal that the trial judge, whose order was there reviewed, fell into the same error as the court below by ruling that there was no proof to support a requested instruction that larceny was a lesser included offense to the charged offense of robbery. A New York Criminal Lawyer said in reversing the conviction, the Supreme Court explained that any lesser offense which is an essential aspect of the major offense is a necessarily included offense because the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence. Thus, in order to prove a robbery, the state must necessarily prove a larceny as an essential element of the major offense. This is so because every robbery necessarily includes a larceny.

In holding that an instruction was required as to lesser offenses necessarily included within the greater offense, the court based its decision largely upon the provisions of the Florida Statutes of 1965, which then mandated an instruction on any offense which is necessarily included in the offense charged. A New York Drug Possession Lawyer said in the court’s view, the statute grants to the jury–not the judge–the discretion to convict an accused of a necessarily lesser included offense, notwithstanding that the evidence is so strong as to satisfy the judge that the greater offense was committed.

The requirement that the trial judge instruct the jury on necessarily lesser offenses was imposed in rule-form by the Florida Supreme Court’s adoption of Florida Rule of Criminal Procedure, which went into effect on January 1, 1968. The rule was amended, effective October 1, 1981, by deleting the provision that the trial court charge the jury on any offense involving either attempts or necessarily included offenses within the offense charged. The rule’s amendment does not, however, absolve the trial judge from his duty to instruct on necessarily lesser included offenses. The stated purpose of the amendment was simply to make it consistent with the newly adopted schedule of lesser included offenses which also went into effect on October 1, 1981. In its order, the court observed that the Rule and its predecessor statute had been interpreted to require instructions on attempts and on all lesser degrees of an offense, despite the absence of any evidence supporting the charges. Attempting to remedy the confusion which had attended those opinions, the court requested the committee on standard jury instructions in criminal cases to recommend a table of lesser included offenses, as well as modifications of the pertinent rules. While approving the recommended schedule of lesser included offenses, the court admonished that it did not view these changes as invasions by the trial judge into the province of the jury. It further observed that the approved changes will eliminate the need to give a requested lesser offense, not necessarily included in the charged offense, when there is a total lack of evidence of the lesser offense.

Thus, it clearly appears from the above comments that a trial judge is required to give instructions to the jury on all necessarily included lesser offenses to that charged, regardless of the degree of proof supporting the conviction for the higher offense. Indeed, the jury pardon concept, approved in a particular case, of allowing all necessarily included offenses to go to the jury, has been reiterated and endorsed by many later opinions of the Florida Supreme Court.

Whether the evidence is susceptible of inference by the jury that the accused is guilty of a lesser offense than that charged is a critical evidentiary matter exclusively within the province of the jury. Fundamental trial fairness requires that an accused being tried for robbery should be permitted to have an instruction on a lesser-included offense upon timely request.

In determining whether to give an instruction on a requested lesser offense, a trial judge should carefully consult the schedule of lesser included offenses contained in the Florida Standard Jury Instructions in Criminal Cases. A New York Sex Crimes Lawyer said the schedule is designed to be as complete a listing as possible for each criminal offense of the possible category 3 and category 4 lesser included offense. It is, moreover, an authoritative compilation upon which a trial judge should be able to confidently rely. Offenses necessarily included in the offense charged were regrouped in the schedule as category-one offenses, a category which will also include some lesser degrees of offenses. For the charged offense of robbery, the schedule lists under category one petit larceny, and refers to the committee’s note on enhancement. Without question an instruction on petit larceny should have been given to the jury in the case below as an offense necessarily lesser included to that of robbery. The continuing vitality of a previous case’s rule is unchanged. It is impossible to prove robbery without proof of larceny.

In regard to the schedule’s reference to the committee’s notes on enhancement, one particular comment states that statutes providing for an enhanced penalty for certain crimes require, under such circumstances, an instruction on lesser statutory degrees of the offense. The court also find in the comment a reinforcement of the jury pardon concept that if an accused is charged with first degree burglary by virtue of having made an assault during the course of the burglary, the jury should be permitted to return a verdict for simple third degree burglary without the enhancement of the assault. Since robbery with a firearm or other deadly weapon is a first degree felony which carries an enhanced sentence of life imprisonment, then the lesser degrees provided for must be considered necessarily included offenses to the offense charged, regardless of the extent of evidence supporting the greater offense. Robbery with a weapon is a necessarily included offense to robbery with a deadly weapon despite the fact that the evidence submitted at trial clearly demonstrated that the robbery was committed with a firearm.

In that all the requested instructions involved lesser offenses necessarily included within the offense charged, the lower court was required to honor the requests, and because no instruction on any requested lesser included offense was given, the two-step removed the harmless error rule is inapplicable.

A crime victim does not only lose the things stolen or taken from them against their will. The criminal act also robs them of the chance to live a safe life. Trauma can be experienced by a person who experienced robbery and that person lose their trust to the people around them. If you want to feel safe again, consult the New York City Petit Larceny Attorney or the NYC Grand Larceny Lawyer. Stephen Bilkis and Associates can also provide you with a reliable NY Criminal Attorney to help you win your legal disputes.

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