164 So. 3d 794
Fla. Dist. Ct. App.2015Background
- Lester Johnson was tried on Count 1: sale/delivery of cocaine within 1,000 feet of a church, and Count 2: possession of cocaine with intent to sell.
- Officer observed an apparent hand-to-hand transaction at a bus stop between Johnson and Tony Campbell; both were detained and found with crack cocaine.
- Johnson admitted possession for personal use and testified he did not sell cocaine; officer testimony supported a sale near a church.
- Jury was instructed on the greater offense first (sale/delivery) and then the lesser included offense (possession).
- The verdict form marked Johnson guilty of both the greater offense (with the 1,000-foot special finding) and the lesser included offense; the jury did not mark "not guilty."
- Trial court, citing Sanchez, declined to send the jury back or reinstruct, polled the jury who confirmed the guilty verdict, and entered judgment and sentence; Johnson appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court should have directed the jury to reconsider when the verdict convicted of both the greater and lesser included offense | Johnson: Rule 3.530 required reinstruction/reconsideration because the verdict was ambiguous/defective | State: The verdict shows an intent to convict the greater offense; the lesser finding is surplusage and not ambiguous | Court: No error — verdict was not defective; jury intended to convict the main offense, so reinstruction unnecessary |
Key Cases Cited
- Sanchez v. State, 490 So. 2d 198 (Fla. 3d DCA 1986) (holding a jury's concurrent conviction of greater and lesser offense can be surplusage where record shows intent to convict greater offense)
- Dixon v. State, 437 N.E.2d 1318 (Ind. 1982) (discussing surplusage when jury convicts of both greater and lesser offenses)
- State v. Hill, 674 P.2d 96 (Utah 1983) (same)
- People v. Albino, 104 A.D.2d 317 (N.Y. App. Div. 1984) (same; affirmed on appeal)
- Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932 (Fla. 2000) (presumption that juries follow instructions)