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Simmons v. State

District Court of Appeal of Florida, Fifth District
Apr 14, 1989
541 So. 2d 1212 (Fla. Dist. Ct. App. 1989)

Opinion

No. 88-115.

January 12, 1989. Rehearing Denied April 14, 1989.

Appeal from the Circuit Court, Volusia County, R. Michael Hutcheson, J.

J. Craig Williams, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.


Defendant was charged by indictment with first degree murder of Willie Grimes (Count I), and attempted first degree murder (Count II), attempted armed robbery (Count III) and attempted kidnapping (Count IV) of Willie Powell. The jury found defendant guilty of first degree murder as charged in Count I, guilty of the lesser included offense of aggravated assault with a firearm as to Count II, guilty of the lesser included offense of assault as to Count III and guilty of attempted kidnapping with a firearm as to Count IV.

Defendant raises various issues in this appeal, none of which have merit except for his contention that the trial court erred in refusing to instruct the jury on attempted false imprisonment as a necessarily lesser included offense of attempted kidnapping.

Since oral argument here, the supreme court has decided the case of State v. Sanborn, 533 So.2d 1169 (Fla. 1988), holding that false imprisonment is a necessarily lesser included offense of kidnapping, and that the failure to give the instruction on false imprisonment when requested is reversible error, approving Sanborn v. State, 513 So.2d 1380 (Fla. 3d DCA 1987). It follows then that attempted false imprisonment is a necessarily lesser included offense of attempted kidnapping, and that the failure to so charge the jury as requested here was reversible error as to the kidnapping charge.

Except as to the conviction for the attempted kidnapping of Willie Powell, the convictions are affirmed. The judgment of conviction for attempted kidnapping is reversed, and is remanded for a new trial as to that charge only.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

DANIEL, J. and EVANS, V.W., Jr., Associate Judge, concur.


Summaries of

Simmons v. State

District Court of Appeal of Florida, Fifth District
Apr 14, 1989
541 So. 2d 1212 (Fla. Dist. Ct. App. 1989)
Case details for

Simmons v. State

Case Details

Full title:WILLIE SIMMONS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Apr 14, 1989

Citations

541 So. 2d 1212 (Fla. Dist. Ct. App. 1989)

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Simmons v. State

On appeal this court affirmed all convictions except that of attempted kidnapping which conviction was…