New Details in the Zimmerman-Martin Controversy

[07DAD]

<p>Here is the link to the Florida Supreme Court website.</p>

<p><a href=“Opinions - Supreme Court”>Opinions - Supreme Court;

<p>Here is what the Court has directed:</p>

<p>

APPENDIX

SCHEDULE OF LESSER INCLUDED OFFENSES
COMMENT ON SCHEDULE OF LESSER INCLUDED OFFENSES
One of the difficult problems in instructing a criminal jury
is to make certain that it is properly charged with respect to
the degrees or categories of guilt that may be applicable to a
given crime. The supreme court in Brown v. State, 206 So.2d 377
(Fla. 1968) described these categories as follows:

1. Crimes divisible into degrees
2. Attempts to commit offenses
3. Offenses necessarily included in the offense charged
4. Offenses which may or may not be included in the offense
   charged, depending on the accusatory pleading and the
   evidence.</p>

<p>Because it is often so difficult to determine these
categories, the committee prepared a list of the offenses
applicable to each of the crimes for which standard jury
instructions had been drafted. At the same time, the committee
recommended treating lesser degrees as category 3 or 4 offenses
depending on the offense and treating attempts as a category 4
offense, thereby eliminating the first two Brown categories as
separate categories. </p>

<p>In its opinion dated April 16, 1981, in
which it approved the new standard jury instructions, the supreme
court also approved the schedule of lesser included offenses and
accepted the recommendation of the committee to consolidate the
four Brown categories into two categories. The supreme court
directed that the four categories should be renumbered and
designated as follows:

1. Offenses necessarily included in the offense charged,
   which will include some lesser degrees of offenses.
   ***2. Offenses which may or may not be included in the offense
   charged, depending on the accusatory pleading and the
   evidence, which will include all attempts and some lesser
   degrees of offenses.***The court also directed that the appropriate Florida Rules
   of Criminal Procedure be amended to accommodate these changes.</p>

<p>The categories of the offenses which appear on the schedule of
lesser included offenses have been renumbered and designated
according to the supreme court mandate.

</p>

<p>If you continue to read the document at the website (use the above link), it lists 2nd degree murder without ANY catagory 1 offenses. It lists manslaughter and several other offenses in catagory 2. That means to me that the Information has to specify any lesser offense to murder 2 to get it submitted.</p>

<p>*Gallo v. State *opines: </p>

<p>

A four-count information charged Gallo with kidnapping with the use of a firearm, two counts of sexual battery, and possession of a firearm [<strong>2] during the commission of a felony. During the charge conference, Gallo’s attorney requested a waiver of all lesser included offense instructions. Although the state attorney initially indicated that he had no objection to such a waiver, the trial judge stated that he was reluctant to grant Gallo’s request because certain lesser included offenses were applicable as a matter of law. After the trial judge made his apprehensions known, the state attorney retracted his initial acquiescence and requested that the court instruct the jury as to the appropriate lesser included offenses. Under count I, the court instructed the jury as to kidnapping with the use of a firearm plus kidnapping without the use of a firearm and false imprisonment. As to counts II and III, the court instructed the jury on the charged offense and on attempted sexual battery with the use of a firearm, sexual battery with force not likely to cause serious injury, and battery. Under count IV, the court instructed the jury as to the charged offense plus improper exhibition of a firearm. Although he made a general objection to the court instructing on any lesser included offenses, Gallo made no specific objection to any [</strong>3] particular instruction that the court actually gave. The jury found Gallo guilty of kidnapping without use of a firearm, guilty of two counts of sexual battery with force not likely to cause serious injury, and not guilty of possession of a firearm during the commission of a felony. On appeal, the Fourth District affirmed both the convictions and the sentences, but expressed some uncertainty concerning our prior [*543] opinion in 2. Harris v. State, 438 So.2d 787 (Fla. 1983), cert. denied, 466 U.S. 963, 104 S. Ct. 2181, 80 L. Ed. 2d 563 (1984). Therefore, the district court certified the instant question. </p>

<p>This Court has long held that, HN1upon a proper request, a trial judge must instruct the jury on necessarily included lesser offenses. See Harris, 438 So.2d at 796; State v. Washington, 268 So.2d 901 (Fla. 1972); Brown v. State, 206 So.2d 377 (Fla. 1968). In Harris, however, we made it clear that a defendant could make a knowing and intelligent waiver of his right to these instructions just as he could expressly waive his right to a jury trial. 438 So.2d at 797. Harris, however, does not stand for the proposition that the state has no say in what instructions [**4] the jury receives.

</p>

<p>Gallo does not address whether the Information has to contain the lesser offenses since in that case it did specify them.</p>