Randolph v. State

578 So. 2d 1148, 1991 Fla. App. LEXIS 4855, 1991 WL 77662

Opinion

W. SHARP, Judge.

Randolph appeals his conviction for the offense of unlawful sale, delivery or possession with intent to sell or deliver a controlled substance.¹ Randolph argues that the trial court erred in refusing his request to instruct the jury on the charge of simple possession, a permissive lesser included (category 2) offense.² We agree.

To be entitled to an instruction on a category 2 offense, both the accusatory pleadings and the evidence must support the commission of the permissive lesser included offense. State v. Daophin, 533 So.2d 761 (Fla.1988); Wilcott v. State, 509 So.2d 261 (Fla.1987); Brown v. State, 206 So.2d 377 (Fla. 1968). Since the information filed against Randolph and the state’s evidence at trial would support a conviction for the offense of simple possession, Randolph was entitled to an instruction on that charge. Accordingly, we reverse his conviction and remand for a new trial. Garrison v. State, 530 So.2d 365 (Fla. 5th DCA 1988).

GOSHORN and PETERSON, JJ., concur.

1 . § 893.13(l)(a)l„ Fla.Stat. (1989).

2 . § 893.13(l)(f), Fla.Stat. (1989).