Carvalho v. State

District Court of Appeal of Florida

Carvalho v. State

513 So. 2d 1321, 12 Fla. L. Weekly 2338, 1987 Fla. App. LEXIS 12194

CourtDistrict Court of Appeal of Florida

DecidedSeptember 29, 1987

DocketNo. 86-2320

StatusPublished

Cited by2 cases

This text of 513 So. 2d 1321 (Carvalho v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Carvalho v. State, 513 So. 2d 1321, 12 Fla. L. Weekly 2338, 1987 Fla. App. LEXIS 12194 (Fla. Ct. App. 1987).

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Opinion

PER CURIAM.

Defendant Reginaldo Carvalho appeals a conviction and sentence for trafficking in cocaine in excess of 400 grams, maintaining that the trial court erred in failing to give an instruction on simple possession of cocaine. We agree and reverse.

Simple possession of cocaine is a category one necessarily included lesser offense of trafficking in cocaine; failure to give an instruction on the next immediate lesser included offense is per se reversible error. State v. Abreau, 363 So.2d 1063 (Fla.1978); Daophin v. State, 511 So.2d 1037 (Fla. 4th DCA 1987); Butler v. State, 497 So.2d 1327 (Fla. 4th DCA 1986); DiPaola v. State, 461 So.2d 284 (Fla. 4th DCA 1985); Smith v. State, 461 So.2d 1024 (Fla. 4th DCA 1985). Contra Brown v. State, 483 So.2d 743 (Fla. 5th DCA 1986). Although a defendant may waive his procedural right to have the jury instructed on necessarily included offenses, Carvalho’s stipulation that he possessed over 400 grams of cocaine was not the equivalent of a waiver. The supreme court has concluded that the defendant himself must expressly waive the right to these instructions, and that the record must reflect that the waiver was knowingly and intelligently made. Harris v. State, 438 So.2d 787 (Fla.1983).

Reversed and remanded.

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PER CURIAM.

Defendant Reginaldo Carvalho appeals a conviction and sentence for trafficking in cocaine in excess of 400 grams, maintaining that the trial court erred in failing to give an instruction on simple possession of cocaine. We agree and reverse.

Simple possession of cocaine is a category one necessarily included lesser offense of trafficking in cocaine; failure to give an instruction on the next immediate lesser included offense is per se reversible error. State v. Abreau, 363 So.2d 1063 (Fla.1978); Daophin v. State, 511 So.2d 1037 (Fla. 4th DCA 1987); Butler v. State, 497 So.2d 1327 (Fla. 4th DCA 1986); DiPaola v. State, 461 So.2d 284 (Fla. 4th DCA 1985); Smith v. State, 461 So.2d 1024 (Fla. 4th DCA 1985). Contra Brown v. State, 483 So.2d 743 (Fla. 5th DCA 1986). Although a defendant may waive his procedural right to have the jury instructed on necessarily included offenses, Carvalho’s stipulation that he possessed over 400 grams of cocaine was not the equivalent of a waiver. The supreme court has concluded that the defendant himself must expressly waive the right to these instructions, and that the record must reflect that the waiver was knowingly and intelligently made. Harris v. State, 438 So.2d 787 (Fla.1983).

Reversed and remanded.

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513 So. 2d 1321, 12 Fla. L. Weekly 2338, 1987 Fla. App. LEXIS 12194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carvalho-v-state-fladistctapp-1987.

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