Public-domain · open source
OpenJurist

394 So. 2d 417

Docket No. 59086.

Reddick v. State

Willie REDDICK, Petitioner, v. STATE of Florida, Respondent.

Supreme Court of Florida

Decided February 12, 1981.

Supreme Court of Florida · decided 1981-02-12

Key passage — most relied on by later courts

“[t]he failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.”

quoted by 2 later decisions, including 529 So. 2d 797 - Marshall v. State, 946 So. 2d 953 - Sanders v. State

Relies on Grant v. State · 372 So. 2d 930 - Growden v. State · 350 So. 2d 123 - Huff v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1981-02-12

How this case has been cited

Cited by 29 later decisions — most recently February 2018 · most notably 438 So. 2d 787 - Harris v. State (1983), Williams v. State (1981)

28 state decisions

1601981199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief Asst. Public Defender, West Palm Beach, for petitioner.

¶2Jim Smith, Atty. Gen., and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for respondent.

¶3McDONALD, Justice.

¶4We review the opinion of the Fifth District Court of Appeal in Reddick v. State,380 So.2d 1330 (Fla. 5th DCA 1980), which expressly and directly conflicts with Growden v. State,372 So.2d 930 (Fla. 1979), and Huff v. State,350 So.2d 123 (Fla. 2d DCA 1977), on the same point of law. Art. V, § 3(b)(3), Fla. Const.

¶5Reddick was convicted of robbery with a firearm pursuant to section 812.13(2)(a), Florida Statutes (1975). The trial judge charged the jury on robbery with a firearm, attempted robbery with a firearm, robbery, and attempted robbery. He denied Reddick's requested charge on robbery with a weapon because "there is no evidence to support it, it was either a firearm or it wasn't."[1]

¶6The Fifth District Court of Appeal distinguished Growden. Growden, however, approved Huff, in which Judge Boardman said: "Thus, if robbery with a weapon *418 is a necessarily lesser included offense of robbery with a deadly weapon, as we believe it is, it follows that the trial court erred in failing to give appellant's requested instruction." 350 So.2d at 124. The failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible. See State v. Abreau,363 So.2d 1063 (Fla. 1978). The requested instruction comes within that degree.

¶7To affirm this decision we would have to recede from Growden and Huff. We decline to do so and therefore quash the decision of the district court of appeal with instructions to remand the cause for a new trial.

¶8It is so ordered.

¶9ADKINS, Acting Chief Justice, BOYD and OVERTON, JJ., concur.

¶10ALDERMAN, J., dissents with an opinion.

¶11ALDERMAN, Justice, dissenting.

¶12I do not believe that the opinion of the Fifth District in the present case expressly and directly conflicts with Growden and Huff on the same point of law. As pointed out by Judge Beranek in his opinion for the Fifth District, Growden is distinguishable because in that case the jury was precluded from considering robbery with a weapon, whereas here the instruction given adequately covered this lesser included offense. 380 So.2d at 1332.

¶13I, therefore, conclude that this Court is without jurisdiction and that Reddick's petition for review should be denied. Art. V, § 3(b)(3), Fla. Const.

¶14If we did have jurisdiction, I would approve the decision of the Fifth District.

NOTES

¶15[1] The store manager testified that the robber used a .32 caliber black revolver with a four-inch barrel.

/394/so2d/417 · .json · Public domain