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.
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
RULE 3.510.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.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.
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.