70 So. 3d 611
Fla. Dist. Ct. App.2011Background
- Appellant Montez Anderson was convicted of attempted second-degree murder and sentenced accordingly.
- The trial court instructed the jury that intent to kill was an element of attempted manslaughter by act, a lesser-included offense one step removed from the charged count.
- The First District Court reversed in part, ruling the instruction error required a new trial and that the instruction affected the lesser-included offense framework.
- The State anticipated a new trial where Anderson would again face potential lesser-included offenses for the charged offense of attempted first-degree murder.
- Anderson requested permissive lesser-included instructions for aggravated battery and simple battery, which the trial court denied.
- The court held the information and evidence supported giving aggravated battery and simple battery instructions as permissive lesser-included offenses if requested at retrial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury instruction wrongly required intent to kill for attempted manslaughter by act. | Anderson. | State. | Reverse for new trial; error reversible on Montgomery basis. |
| Whether aggravated battery should have been instructed as a permissive lesser-included offense of attempted first-degree murder. | Anderson. | State. | Court should have instructed on aggravated battery if requested. |
| Whether simple battery should have been instructed as a permissive lesser-included offense of attempted first-degree murder. | Anderson. | State. | Court should have instructed on simple batter y if requested. |
Key Cases Cited
- State v. Montgomery, 39 So.3d 252 (Fla. 2010) (reverses for instructional error on attempted manslaughter vs. intent to kill)
- Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009) (defines permissible lesser-included offenses framework)
- Herring v. State, 43 So.3d 823 (Fla. 1st DCA 2010) (limits on instructional error analysis in lesser-included offenses)
- Khianthalat v. State, 974 So.2d 359 (Fla.1998) (permissive lesser-included offenses require appropriate charging and evidence)
- Amado v. State, 585 So.2d 282 (Fla.1991) (court must instruct on permissive lesser-included offenses when properly urged)
- Carle v. State, 983 So.2d 693 (Fla.1st DCA 2008) (elements of lesser-included offenses subsumed by greater offense analysis)