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To: P-Marlowe

I’ve read that in Florida the jury can consider a lesser charge automatically. I don’t know if that’s true, but I’ve read it on some thread someplace.


1,268 posted on 06/28/2013 4:54:44 PM PDT by xzins (Retired Army Chaplain and Proud of It! True supporters of our troops pray for their victory!)
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To: xzins
I don't see how a jury can convict a defendant of a crime which he hasn't been charged with. IIRC, The prosecution refused to charge the lesser offenses because the black community wanted " Justice for Trayvon" and a manslaughter conviction would not sit well with the race baiter crowd.
1,274 posted on 06/28/2013 5:02:22 PM PDT by P-Marlowe (There can be no Victory without a fight and no battle without wounds.ca)
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To: xzins
If it goes to the jury, the jury MUST be given instructions on all applicable lesser included charges. By my reckoning, the only one that applies is manslaughter. There is no allegation in the information that rings of negligence, so the potential lesser includeds such as culpable negligence are not going to be given.

Jamerson v. State, 3D09-2429 (Fla. 3DCA 2011)

To instruct the jury on a category two lesser included offense, the accusatory pleading must allege the necessary elements of the lesser included offense and there must be sufficient proof to support a conviction. I.T. v. State, 694 So. 2d 720, 723-24 (Fla. 1997); V.C. v. State, 63 So. 3d 831, 833- 34 (Fla. 3d DCA 2011); J.O. v. State, 42 So. 3d 803, 804 (Fla. 3d DCA 2010); Lester v. State, 25 So. 3d 623, 625 (Fla. 3d DCA 2009).
                                      Lesser Included Offenses

            SECOND DEGREE (DEPRAVED MIND) MURDER a 782.04(2)

CATEGORY ONE           CATEGORY TWO                 FLA. STAT.                     INS. NO.
Manslaughter                                        782.07                         7.7
                       Third degree (felony) murder 782.04(4)                      7.6
                       Vehicular homicide           782.071                        7.9
                       (Nonhomicide lessers)        777.04(1)                      5.1
                       Attempt
                       Culpable negligence          784.05(2)                      8.9
                       Culpable negligence          784.05(1)                      8.9
                       Felony battery               784.041                        8.5
                       Aggravated battery           784.045                        8.4
                       Aggravated assault           784.021                        8.2
                       Battery                      784.03                         8.3
                       Assault                      784.011                        8.1

1,280 posted on 06/28/2013 5:16:57 PM PDT by Cboldt
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To: xzins
On the issue of the jury MUST be given the lesser included, this is from Florida's Rules of Criminal Procedure.
RULE 3.510.

DETERMINATION OF ATTEMPTS AND LESSER INCLUDED OFFENSES

On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:

(a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense; or

(b) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

Committee Notes
1968 Adoption. Same as section 919.16, Florida Statutes. The standing committee on Florida court rules raised the question as to whether this rule is procedural or substantive and directed the subcommittee to call this fact to the attention of the supreme court.

I don't have it at my fingertips, but recall reading a Florida case that held the jury MUST be given these option, that a judge does not have the discretion to limit the instructions sent to the jury. The power of the judge is limited to discerning which charges are not supported by the evidence.

The only "automatic" lesser included charges are those in the "Category One" column. Category One = an offense that as a matter of law is a necessarily included offense or a lesser included offense.

1,299 posted on 06/28/2013 5:44:35 PM PDT by Cboldt
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