By petition for a writ of certiorari, we are asked to review a decision of the Third District Court of Appeal, reported at 347 So.2d 819, which conflicts with DeLaine v. State, 262 So.2d 655 (Fla. 1972). We have jurisdiction, and we dispense with oral argument and with briefs on the merits. The decision below was grounded on the District Court's belief that this Court in Lomax v. State, 345 So.2d 719 (Fla. 1977), "receded from DeLaine and its progeny." We did not, and for that reason must quash the decision below.

Fla.App.R. 3.10(e).

347 So.2d at 821.

For the purpose of clarification, we note that Lomax involved a trial court's failure to give a requested instruction on a lesser-included offense that was only one step removed from the offense charged, while in DeLaine, as in the present case, the trial judge gave instructions on the next immediate lesser-included offense but refused to instruct the jury on an offense two steps removed. The significance of that distinction is more than merely a matter of number or degree, since in the latter situation, unlike the former, the jury is given a fair opportunity to exercise its inherent "pardon" power by returning a verdict of guilty as to the next lower crime. For example, if a defendant is charged with offense "A" of which "B" is the next immediate lesser-included offense (one step removed) and "C" is the next below "B" (two steps removed), then when the jury is instructed on "B" yet still convicts the accused of "A" it is logical to assume that the panel would not have found him guilty only of "C" (that is, would have passed over "B"), so that the failure to instruct on "C" is harmless. If, however, the jury only receives instructions on "A" and "C" and returns a conviction on "A", the error cannot be harmless because it is impossible to determine whether the jury, if given the opportunity, would have "pardoned" the defendant to the extent of convicting him on "B" (although it may have been unwilling to make the two-step leap downward to "C").

Thus, to the extent that the broad language employed in Lomax intimates that the harmless error doctrine cannot be invoked whenever there has been a failure to instruct on any lesser-included offense, it is disapproved. Only the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible. Where the omitted instruction relates to an offense two or more steps removed, DeLaine continues to have vitality, and reviewing courts may properly find such error to be harmless.

The writ of certiorari is hereby issued, and the decision of the Third District Court of Appeal is quashed.

It is so ordered.

OVERTON, C.J., and ADKINS, ENGLAND, SUNDBERG, HATCHETT and ALDERMAN, JJ., concur.

Summaries of

State v. Abreau

Supreme Court of Florida

Nov 28, 1978

363 So. 2d 1063 (Fla. 1978)

holding failure to instruct jury on offense two or more steps removed from charged and convicted offense may be found to be harmless error

Summary of this case from Sperduti v. State

holding that "[o]nly the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible." When the omitted instruction relates to an offense two or more steps removed, the error is harmless

Summary of this case from Cooper v. State

holding omission of instruction on next lesser offense is per se error and omission of instruction on lesser offense two steps removed may be harmless

Summary of this case from Jemmott v. State

holding only the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible

Summary of this case from Pryor v. State

holding that where the omitted instruction relates to an offense two or more steps removed from the offense charged the error is harmless

Summary of this case from Williams v. State

finding per se reversible error only when court fails to instruct jury on the lesser-included offense that is one step removed from the conviction

Summary of this case from Pena v. State

finding per se reversible error only when court fails to instruct jury on the lesser-included offense that is one step removed from the conviction

Summary of this case from Pena v. State

deciding that when a defendant is charged with offense "A" and the jury is instructed on "A" and "B," a lesser-included offense one step removed from "A," but is not instructed on "C," which is two steps removed, and the jury convicts the accused of "A," then failure to instruct on "C" is harmless

Summary of this case from Sherrer v. State

In Abreau, decided the year after Lomax, this Court reaffirmed the per se rule governing the instruction on necessarily lesser included offenses.

Summary of this case from Knight v. State

relying on need for jury to be given “a fair opportunity to exercise its inherent ‘pardon’ power by returning a verdict of guilty as to the next lower crime” to support holding that “failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible”

Summary of this case from Haygood v. State

explaining that the error is per se reversible in such cases because it is impossible to determine the impact of the omission on the jury's exercise of its inherent pardon power

Summary of this case from Damoulakis v. State

In State v. Abreau, 363 So.2d 1063, 1064 (Fla. 1978), the court noted that the jury must be given a fair opportunity to exercise its inherent "pardon" power by returning a verdict of guilty as to the next lower crime.

Summary of this case from Wimberly v. State

In Abreau it was held to be reversible error per se for a trial judge to fail to instruct on the next immediate lesser included offense (one step removed).

Summary of this case from Delvalle v. State

In Abreau, the supreme court held that the failure to give an accurate instruction on a lesser included offense which is two steps removed from the crime of which the defendant is convicted constitutes harmless error.

Summary of this case from Stallings v. State

In State v. Abreau, 363 So.2d 1063 (Fla. 1978), the supreme court spoke of the "inherent" power of the jury to return a verdict of guilty as to lesser included offenses.

Summary of this case from Gonzalez v. State

In State v. Abreau, 363 So.2d 1063 (Fla. 1978), the Supreme Court established that the failure to instruct the jury on the next immediate lesser included offense — that is, the offense one step removed from the offense of conviction — constitutes error that is per se reversible, whereas an omitted instruction relating to a lesser offense two or more steps removed from the offense of conviction may be found to be harmless error.

Summary of this case from Pride v. State

In State v. Abreau, 363 So.2d 1063 (Fla. 1978), the supreme court stated that the failure to instruct on the next immediate lesser included offense (one step removed) constitutes error that is per se reversible.

Summary of this case from Foster v. State

State v. Abreau

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State v. Abreau

State v. Abreau

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State v. Abreau

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