Lomax v. StateLomax v. State
James A. Gardner, Public Defender, Sarasоta, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
Robert L. Shevin, Atty. Gen., Tallahаssee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
GRIMES, Judge.
This case is another in a long linе of cases which concern the effect of the failure to give a requested instruction on a lesser included offense.
On the night of March 28 the appellant was seen hanging arоund the lobby of a motel for a couple of hours. He then pulled a pistol on the clerk and had her fill a paper bag with the contents of the cash register. He took her aсross the street to another building, had her disrobe and tied her in a shower. She managed to get frеe
At trial appellant was idеntified as the perpetrator of the crime and was convicted of robbery. Beforе the jury was charged, however, the defense requested instructions on attempted robbery, assault with intent to commit robbery, grand larceny and petit larceny. The court refused to instruct on assault with intent to commit robbery and attempted robbery expressly for the reasons that thе only lesser included offenses to robbery set forth in Florida Standard Jury Instructions in Criminal Cases are grand larceny and petit larceny.
Several opinions have indicated that assault with intent to commit robbery is a category (3)1 necessarily lesser included offense of robbery. Gilford v. State, Fla. 1975, 313 So.2d 729; Bracy v. State, Fla.App.4th, 1974, 299 So.2d 126; Henry v. State, Fla.App.2d, 1973, 277 So.2d 78. However, the Supreme Court recently held in State v. White, Fla. 1975, 324 So.2d 630, (Opinion filed September 10, 1975), that one of the elements оf assault is the victim‘s well-founded fear that violence is imminent. Under the reasoning of that casе where, as here, the information charges robbery in the usual statutory terms, it would be possible to commit the robbery without committing an assault. Therefore, if anything, assault with intent to commit robbery could have only been a category (4) offense in this case. Turning to the proof, we find amрle evidence of an assault so it was error to fail to give the requested instruction on this charge.2 Likewise, the mandate of
While also being different in kind, assault with intent to commit robbery is a more serious crime than grand larceny in terms of penalty. Therеfore, the rule of DeLaine v. State, Fla. 1972, 262 So.2d 655, holding harmless the failure to give an instruction “two steps removed,” does nоt apply. Yet, the evidence in this case is so overwhelming, we are prompted to аsk whether the harmless error rule can apply where the instruction which should have been given concerns an offense one step removed from that of which the appellаnt was charged and convicted. Upon reflection, we conclude that it can.
In State v. Wilson, Fla. 1973, 276 So.2d 45, the Supreme Court held that even though the court should have given a requested instruction on assault whеre the defendant was charged with and convicted of robbery, the failure to do so was harmless in view of the “substantial evidence in support of the jury‘s verdict.” While the DeLaine “two step” rationale might have been applicable because a charge on grand larceny was given, the court chose to base its decision on the overwhelming evidence of guilt. The fаct that Justice Boyd‘s plea for the right of “jury pardon” of the higher degree of crime was a minority position in Gilford v. State, supra, lends support to our conclusion. In short, we hold that the failure to give an instruсtion of an immediately lesser included offense may be harmless if there is overwhelming evidence that the appellant committed the greater crime and the jury could not reasоnably have found that only the lesser crime was committed.
To hold that this appellant was not fairly tried for the failure to give the requested instructions would be an affront to justice. Appellant‘s other points on appeal do not merit discussion.
Affirmed.
McNULTY, C.J., and HOBSON, J., concur.