Summary
In Williams, the defendant admitted the offense charged but the dispositive question of sanity was submerged into a sea of instructions on lesser included offenses.
Summary of this case from Wilcott v. StateOpinion
No. 83-1381.
January 23, 1985.
Appeal from the Circuit Court, Broward County, Stanton S. Kaplan, J.
Richard L. Jorandby, Public Defender, and Stephen W. Benedict, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
Defendant, charged with attempted first-degree murder, was found guilty of attempted second-degree murder. He claims that the trial court committed reversible error by declining to instruct the jury on the crime of attempted third-degree murder. We agree.
It is now well-settled that the crime of attempted third-degree murder exists in Florida. See State v. Overfelt, 457 So.2d 1385 (Fla. 1984); Gentry v. State, 437 So.2d 1097 (Fla. 1983). It is equally well-settled that "the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible." State v. Abreau, 363 So.2d 1063 (Fla. 1978). Thus, the trial court's refusal to instruct on attempted third-degree murder, the next immediate lesser-included offense to the crime of attempted second-degree murder, requires reversal of defendant's conviction and sentence for the crime of attempted second-degree murder.
REVERSED and REMANDED for NEW TRIAL.
LETTS, HURLEY and DELL, JJ., concur.