Reddick v. StateReddick v. State
Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
BERANEK, JOHN R., Associate Judge.
Appellant was convicted of robbery with a firearm pursuant to
Appellant asserts the court erred in failing to give his requested charge on robbery with a weapon pursuant to
From the unrebutted testimony of two eye witnesses, the facts are as follows. An individual entered a convenience store and robbed the manager of the store of cash at gunpoint. The store manager testified that the robber used a .32 caliber black revolver with a four-inch barrel. This witness had extensive experience with guns. Another eye witness was also held at gun point and was absolutely certain that it was in fact a firearm. Both eye witnesses identified the defendant whom they knew personally.
The defense was one of alibi. Defendant testified he was at a relative‘s home watching television. He presented the testimony of family members to this effect. The jury found defendant guilty of robbery with a firearm.
Defendant asserts error claiming no instruction was given on robbery with a weapon. Despite his defense of alibi, he argued to the trial judge that perhaps the jury would think the gun was really a stick or some other weapon which was not a firearm.
(a) Robbery with a firearm or other deadly weapon;
(b) Robbery with a weapon (not a firearm or deadly weapon);
(c) Robbery without any weapon or firearm.
After a close reading of the transcript, we find the defendant is incorrect in his contention that an instruction on subsection (b) was not given.
The jury was charged on “robbery with a firearm” and on the crime of “robbery” as a lesser included offense. The “robbery” instruction, contrary to the statute, did not indicate anything concerning the use of a
The case of Growden v. State, supra, is distinguishable. There, the jury was precluded from considering robbery with a weapon whereas here the instructions given adequately covered this lesser included offense as a theory of defense.
In seeking a reversal for failure to instruct on a lesser included offense, the defendant herein should not be allowed to assert error without a demonstration of prejudice. State v. Abreau, 363 So.2d 1063 (Fla. 1978), and Brown v. State, 206 So.2d 377 (Fla. 1968), hold that the reason for the rule of reversal despite an absence of prejudice is because of the concept of a “jury pardon.” The Brown decision is based on two statutes. It construes
The jury here was unaware that they had the pardon power and they were in fact specifically instructed to the contrary. Florida Standard Jury Instruction (Crim.) 2.16 “Verdict” provides as follows:
You may find the defendant guilty as charged in the information or guilty of such lesser included crime as the evidence may justify. (Reference to verdicts omitted).
If you return a verdict of guilty, it should be for the highest offense which has been proved beyond a reasonable doubt. If you find that no offense has been proved beyond a reasonable doubt, then, of course, your verdict must be not guilty.
This standard jury instruction was given in the instant case without objection by defendant. It had the effect of telling the jury they should convict the defendant of the highest offense proved. It did not allow the jury to pardon the defendant by convicting him of some lower offense. The defendant cannot logically be allowed to assert he was prejudiced by not having the jury pardon him to a lesser offense when he did not object to the instruction which specifically told the jury they could not pardon him.
This leads to the very interesting question of why we have “jury pardons” without telling the jury about it. We are aware of no authority for the giving of an instruction on jury pardons, and we would not condone it. We simply are unable to understand how a defendant can be entitled to a reversal of an otherwise proper conviction because a trial court somehow prevented a jury from doing something (a jury pardon) which that jury did not know it could do.
The court, however, did err in sentencing the defendant to an indeterminate sentence of three to ten years. The sentence is thus vacated and the case remanded for resentencing in accordance with Cox v. State, 344 So.2d 1324 (Fla.2d DCA 1977), cert. denied, 354 So.2d 979 (Fla. 1977).
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.
DAUKSCH, C.J., concurs.
ANSTEAD, HARRY LEE, Associate Judge, dissents.
ANSTEAD, HARRY LEE, Associate Judge, dissenting:
The trial court failed to grant an instruction requested on a lesser included offense only one step removed from the offense charged. The case of Growden v. State, 372 So.2d 930 (Fla. 1979) appears to be directly on point and mandates reversal.