Opinion
No. 46223.
July 30, 1975.
Appeal from the Circuit Court, Lee County, James R. Adams, J.
James A. Gardner, Public Defender, and Elliott C. Metcalfe, Jr., Asst. Public Defender, for petitioner.
Robert L. Shevin, Atty. Gen., and Charles Corces, Jr., Asst. Atty. Gen., for respondent.
This cause is before us on a petition for writ of certiorari, supported by certificate of the District Court of Appeal, Second District, that its decision in Huckeba v. State, 299 So.2d 104 (Fla.App.2d 1974), is one which involves a question of great public interest.
Petitioner was informed against for grand larceny. He pled not guilty, but was found guilty by the jury, and was sentenced to five years. The trial court denied the petitioner's requested jury instruction under Florida Rule of Criminal Procedure 3.390(a) as to the maximum penalty for said crime. The Second District affirmed per curiam and certified the question of whether the language of the above rule is mandatory or merely directory.
The identical question was certified to this Court in Johnson v. State, 308 So.2d 38 (Fla. 1974). Therein, we found the language of the rule to be directory and not mandatory. Thus, the granting or denying of a request for such an instruction lies within the discretion of the trial judge.
Winston v. State, 308 So.2d 40 (Fla. 1974) was also before us on the same certified question and was decide on the authority of Johnson, supra.
We have found the petitioner's other points to be without merit. Accordingly, the writ of certiorari is discharged.
It is so ordered.
ADKINS, C.J., ROBERTS, BOYD, McCAIN and OVERTON, JJ., and MELTON, Circuit Judge, concur.