In Re Florida Rules of Criminal Procedure

403 So. 2d 979 (1981)

In re FLORIDA RULES OF CRIMINAL PROCEDURE.

No. 58988-A.

Supreme Court of Florida.

September 24, 1981.

Stan R. Morris, Chairman, Gainesville, for The Criminal Procedure Rules Committee, petitioner.

PER CURIAM.

Pursuant to our June 5 order, In re Standard Jury Instructions in Criminal Cases, No. 58,799 (Fla. 1981), the newly adopted schedule of lesser included offenses will become effective on October 1, 1981. At the Court's request, the Supreme Court Committee on Standard Jury Instructions in Criminal Cases and the Florida Bar Criminal Rules Committee have proposed new Rules of Criminal Procedure 3.490 and 3.510 which are consistent with the new schedule. We approve and adopt the proposed rules as follows:

Rule 3.490. Determination of Degree of Offense

If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence. The judge shall not instruct on any degree as to which there is no evidence.

Rule 3.510. Determination of Attempts and Lesser Included Offenses

Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:

(a) an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.

(b) any offense which as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence.

They shall become effective on October 1, 1981.

It is so ordered.

ADKINS, OVERTON, ALDERMAN and McDONALD, JJ., concur.

SUNDBERG, C.J., and BOYD, J., dissent.