Florida Court Holds Defendant Waived Right to Lesser Included Offense Instruction by Failing to Specifically Request it at Trial

Under Florida law, a lesser included offense is a less serious crime that is incorporated into a more serious crime. For example, a lewd and lascivious act, which is a misdemeanor, is a lesser included offense in several felony level sex crimes. In cases where the jury is permitted to evaluate whether a defendant is guilty of a lesser included offense, a defendant may avoid the risk of a felony conviction. Therefore, if a defendant is tried for a crime that has a lesser included offense it is essential that the jury is instructed regarding the lesser offense.

As the court recently affirmed in Calhoun v. Floridaa case arising out of the First District Court of Appeal of Florida, the failure to ensure a jury is properly instructed regarding lesser included offenses results in a waiver of the right. If you are charged with a sex crime in Clearwater it is essential to your defense obtain a skilled Clearwater sex crime defense attorney to evaluate your case.

Factual Background

Purportedly, in Calhoun, the defendant was charged and convicted of sexual battery by multiple perpetrators. He appealed, arguing that the trial court erroneously failed to instruct the jury regarding the lesser included offense of a lewd and lascivious act. The court affirmed the defendant’s conviction, finding that the defendant did not argue at trial that the court erred in failing to instruct the jury on a lesser included offense, and therefore did not preserve the issue for appeal.

Allegedly, during the trial, the defense attorney requested the jury receive instructions regarding unnatural and lascivious acts, but advised that unnatural and lascivious acts were not a Category 1 or Category 2 offense. The state objected on the grounds that unnatural and lascivious acts was not a Category 2 offense. Defense counsel reiterated the request that the jury receive instructions on the unnatural and lascivious acts, but did not elaborate. The court denied the request, and the jury did not receive instructions regarding unnatural and lascivious acts.

Necessary and Permissive Lesser Included Offenses

On appeal, the court explained that a lesser included offense may be necessary or permissive. If a lesser included offense is necessary, the elements of the lesser offense are included in the elements of the greater crime, and the defendant cannot be found to have committed the greater crime without committing the lesser crime. With permissive lesser offenses, the state must allege the elements of the lesser offense and prove facts supporting each element of the lesser offense, for a permissive lesser offense to be present. Florida law deems necessary lesser included offenses as Category 1 offenses and permissive lesser included offenses as Category 2 offenses.

Ruling of the First District Court of Appeal State of Florida

The court held that because defense counsel did not request the jury receive the unnatural and lascivious act instruction based on the grounds that it was a lesser permissive offense for the crime charged until he filed the appeal, he waived the right to set forth the argument. As such, the court affirmed the defendant’s conviction.

Schedule a Consultation with a Skilled Clearwater Sex Crime Defense Attorney

If you are charged with a sex crime in Clearwater, it is essential to your liberties to retain a skilled sex crime defense attorney to assess your case and develop a plan to provide you with a strong chance of obtaining a favorable outcome. William Hanlon of Hanlon Law is an experienced Clearwater sex crime defense attorney who will help you fight the charges you face. Contact our offices at 727-897-5413 or via the online form to set up a consultation.

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