Public-domain · open source
OpenJurist

570 So. 2d 1158

Johnson v. State

District Court of Appeal of Florida

Decided December 20, 1990

District Court of Appeal of Florida · decided 1990-12-20

Cited by 3 later decisions — most recently February 2011

3 state decisions

Relies on 531 So. 2d 401 - Reaves v. State · 539 So. 2d 559 - Essex v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1990-12-20

View the full empirical analysis of this case →

PER CURIAM.

¶1Appellant, charged in two cases with “unlawful sale or delivery of or unlawful possession with intent to sell or deliver a controlled substance,” in violation of section 893.13(l)(a)l, Florida Statutes (1987), complains that the trial court erred in refusing an instruction on simple possession. We agree that defendant was entitled to an instruction on simple possession as a lesser included offense. See Fla.Std.Jury Instr. (Crim.), Schedule of Lesser Included Offenses (§ 893.13(l)(a), Fla.Stat.); Essex v. State, 539 So.2d 559 (Fla. 4th DCA 1989).

¶2Appellant also complains of the refusal to allow surrebuttal to the defendant to explain apparently impeaching evidence introduced by the state involving the appellant’s prior criminal record. The trial court took the position that surrebuttal was impossible and would not consider the testimony. Without knowing the nature of the proposed testimony we cannot determine whether it would have been an abuse of discretion on the part of the trial court to refuse to allow it, but he should have considered the request on its merits because surrebuttal was within his discretion to allow. Reaves v. State, 531 So.2d 401 (Fla. 5th DCA 1988).

¶3REVERSED and REMANDED.

SHARP, W„ COWART and GRIFFIN, JJ., concur.
/570/so2d/1158 · .json · Public domain