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635 So. 2d 16

Docket No. 82187.

Wilson v. State

Thomas F. WILSON, Jr., Petitioner, v. STATE of Florida, Respondent.

Supreme Court of Florida

Decided April 14, 1994.

Supreme Court of Florida · decided 1994-04-14

Key passage — most relied on by later courts

“WHERE THE VICTIMS TESTIFY THAT THE DEFENDANT COMPLETED THE CHARGED OFFENSES OF CAPITAL SEXUAL BATTERY OF A VICTIM UNDER 12 AND LEWD AND LASCIVIOUS ASSAULT, AND THE DEFENDANT TOTALLY DENIES COMMISSION OF ANY OFFENSE, IS A TRIAL COURT REQUIRED TO INSTRUCT A JURY ON ATTEMPT IF REQUESTED TO DO SO BY THE DEFENDANT?”

quoted by 1 later decision, including Ostrum v. State

Relies on Williams v. State · 557 So. 2d 582 - Firkey v. State · 622 So. 2d 31 - Wilson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1994-04-14

How this case has been cited

Cited by 12 later decisions — most recently December 2011

12 state decisions

80199420002010decided

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 →

¶1Nancy A. Daniels, Public Defender, and David P. Gauldin, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for petitioner.

¶2Robert A. Butterworth, Atty. Gen., James W. Rogers, Bureau Chief Crim. Appeals, Sr. Asst. Atty. Gen. and Joe S. Garwood, Asst. Atty. Gen., Tallahassee, for respondent.

¶3GRIMES, Justice.

¶4We review Wilson v. State,622 So.2d 31 (Fla. 1st DCA 1993), in which the court certified the following as a question of great public importance:

WHERE THE VICTIMS TESTIFY THAT THE DEFENDANT COMPLETED THE CHARGED OFFENSES OF CAPITAL SEXUAL BATTERY OF A VICTIM UNDER 12 AND LEWD AND LASCIVIOUS ASSAULT, AND THE DEFENDANT TOTALLY DENIES COMMISSION OF ANY OFFENSE, IS A TRIAL COURT REQUIRED TO INSTRUCT A JURY ON ATTEMPT IF REQUESTED TO DO SO BY THE DEFENDANT?

¶5*17Id. at 37. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.

¶6We answer the certified question in the negative. Florida Rule of Criminal Procedure 3.510 specifies that the jury shall not be instructed upon attempt "if there is no evidence to support such attempt and the only evidence proves the completed offense." The court below properly explained that attempts are to be treated as category two lesser included offenses. We disapprove Firkey v. State,557 So.2d 582 (Fla. 4th DCA 1989), review denied,574 So.2d 140 (Fla. 1990), to the extent that it stated, albeit in another context, that an attempt was a necessarily lesser included offense. We do not address the other questions raised by Wilson.

¶7We approve the decision below.

¶8It is so ordered.

¶9BARKETT, C.J., and OVERTON, McDONALD, SHAW, KOGAN and HARDING, JJ., concur.

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