DocketNumber: No. 1D10-0243
Citation Numbers: 71 So. 3d 901
Judges: Marstiller, Ray, Wetherell
Filed Date: 8/23/2011
Status: Precedential
Modified Date: 8/26/2021
The state charged Xavier Spencer with principal in the first degree to robbery, a second-degree felony.
When the jury returned from deliberating, it presented to the court a verdict form on which two of the four choices were marked: guilty of petit theft and guilty of assault.
We conclude the trial court should have granted Spencer a new trial. By rejecting
REVERSED and REMANDED.
. See §§ 777.011; 812.13(2)(c), Fla. Stat. (2008).
. See §§ 784.011(2); 812.014(3), Fla. Stat. (2008); Fla. Std. Jury Instr. (Crim.) 15.1.
. This verdict form is not in the record on appeal. Neither is it in the trial court's case file, apparently.
. See, e.g., Bell v. State, 437 So.2d 1057, 1061 (Fla.1983) (explaining how to instruct the jury on the lesser-included crimes in a drug trafficking prosecution; stating that after instructing on the greater offense and all the appropriate lesser-included offenses, "[t]he jury then must be further instructed that it can convict of either the greater offense or one or more of the lesser included offenses ....”) (emphasis added); and see Stuckey v. State, 972 So.2d 918, 921 (Fla. 5th DCA 2007) (concluding that defendant who was charged with and prosecuted for robbery could be convicted of both lesser-included crimes of petit theft and resisting a merchant).
. We have no doubt the trial court in good faith exercised its authority under Florida Rule of Criminal Procedure 3.530, which provides:
If a verdict is so defective that the court cannot determine from it whether the jurors intended to acquit the defendant or to convict the defendant of an offense for which judgment could be entered under the indictment or information on which the defendant is tried, or cannot determine from it on what count or counts the jurors intended to acquit or convict the defendant, the court shall, with proper instructions, direct the jurors to reconsider the verdict, and the verdict shall not be received until it shall clearly appear therefrom whether the jurors intended to convict or acquit the defendant and on what count or counts they intended to acquit or convict the defendant. If the jury persists in rendering a defective verdict, the court shall declare a mistrial.