Simmons v. State

541 So. 2d 1212, 14 Fla. L. Weekly 174, 1989 Fla. App. LEXIS 94, 1989 WL 1036

• Court: District Court of Appeal of Florida
• Decided: January 12, 1989
• Docket: No. 88-115
• Status: Published

Opinion

ORFINGER, Judge.

Defendant was charged by indictment with first degree murder of Willie Grimes (Count I), and attempted first degree murder (Count II), attempted armed robbery (Count III) and attempted kidnapping (Count IV) of Willie Powell. The jury found defendant guilty of first degree murder as charged in Count I, guilty of the lesser included offense of aggravated assault with a firearm as to Count II, guilty of the lesser included offense of assault as to Count III and guilty of attempted kidnapping with a firearm as to Count IV.

Defendant raises various issues in this appeal, none of which have merit except for his contention that the trial court erred in refusing to instruct the jury on attempted false imprisonment as a necessarily lesser included offense of attempted kidnapping.

Since oral argument here, the supreme court has decided the case of State v. Sanborn, 533 So.2d 1169 (Fla.1988), holding that false imprisonment is a necessarily lesser included offense of kidnapping, and that the failure to give the instruction on false imprisonment when requested is reversible error, approving Sanborn v. State, 513 So.2d 1380 (Fla. 3d DCA 1987). It follows then that attempted false imprisonment is a necessarily lesser included offense of attempted kidnapping, and that the failure to so charge the jury as requested here was reversible error as to the kidnapping charge.

Except as to the conviction for the attempted kidnapping of Willie Powell, the convictions are affirmed. The judgment of conviction for attempted kidnapping is reversed, and is remanded for a new trial as to that charge only.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

DANIEL, J. and EVANS, V.W., Jr., Associate Judge, concur.