Crespo v. State

Full title: SERVILIO CRESPO, APPELLANT, v. THE STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Dec 14, 1994

647 So. 2d 295 (Fla. Dist. Ct. App. 1994)

Opinion

No. 93-1389.

December 14, 1994.

Petition for review from the Circuit Court, Dade County, Thomas Carney, J.

Bennett H. Brummer, Public Defender, and Lorraine C. Holmes, Sp. Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Stephanie G. Kolman, Asst. Atty. Gen., for appellee.

Before BARKDULL, HUBBART and JORGENSON, JJ.

PER CURIAM.

Servilio Crespo, defendant in the trial court, seeks review of the trial court's entry of judgment and sentence.

Defendant was arrested and charged with armed robbery and armed kidnapping for holding up a restaurant. At the close of evidence, defense counsel requested a jury instruction on aggravated assault. The trial judge denied defendant's request and instructed the jury on armed robbery and the next immediate lesser included offense of simple robbery. The jury returned a guilty verdict on the charge of armed robbery. Appellant now complains that the trial court erred by failing to give a required instruction on aggravated assault as a lesser included offense of the charged offense of armed robbery.

The law is clear that the trial court is required to instruct the jury on the next immediate lesser included offense of the crime charged as the trial court properly did here by instructing the jury on simple robbery. State v. Abreau, 363 So.2d 1063 (Fla. 1978); Bates v. State, 579 So.2d 849 (Fla. 2d DCA 1991). Failure to instruct on a lesser included offense one step removed from the charged offense is per se reversible error. Reddick v. State, 394 So.2d 417 (Fla. 1981); Abreau, 363 So.2d at 1064. However, aggravated assault is two steps removed from the charged offense of armed robbery. Taylor v. State, 608 So.2d 804 (Fla. 1992). Failure to instruct on a lesser included offense two steps removed from the offenses for which a defendant is convicted is harmless error. Abreau, 363 So.2d at 1064. Thus, because aggravated assault is two steps removed from the charged offense of armed robbery, any error resulting from the trial court's refusal to instruct the jury on aggravated assault was harmless.

Accordingly, the trial court's judgment and sentence are affirmed.

Affirmed.