The seminal case on this issue is Hedges v. State, 172 So.2d 824 (Fla. 1965), in which this Court pointed out that manslaughter was in the nature of a residual offense and that a complete definition of manslaughter requires an explanation that justifiable homicide and excusable homicide are excluded from the crime. Consistent with the principle of Lomax v. State, 345 So.2d 719 (Fla. 1977) (failure to instruct on lesser included offense constitutes prejudicial error), a substantial number of murder convictions have been set aside because of a Hedges error in the manslaughter instruction. E.g.
We have jurisdiction, and we dispense with oral argument and with briefs on the merits. The decision below was grounded on the District Court's belief that this Court in Lomax v. State, 345 So.2d 719 (Fla. 1977), "receded from DeLaine and its progeny." We did not, and for that reason must quash the decision below.
Under Brown, it is clear that a jury charge on a category 2 permissive lesser included offense was required to be given even though there was no rational basis in the evidence by which the jury could acquit the defendant on the charged offense and convict the defendant on the permissive lesser included offense; it was enough if some evidence was adduced to establish all the elements of the lesser offense, albeit that this same evidence also established all the elements of the charged offense. Indeed, the Florida Supreme Court in Lomax v. State, 345 So.2d 719 (Fla. 1977), reaffirmed, in effect, this very proposition. Subsequent to Brown, however, many members of the bench and bar bridled at the requirement that the trial judge, upon proper request, had to instruct the jury on all four categories of lesser included offenses outlined in the Brown opinion, even where there was no rational basis in the evidence upon which the jury could conclude that the lesser offense was committed, but not the charged offense. Under this now-abandoned practice, the jury was frequently awash in a confusing laundry list of lesser offenses which could not possibly have been committed without also committing the charged offense.
Of the seven points raised on appeal, only the point contending the trial court committed reversible error by refusing to instruct the jury on the lesser included offense provided in § 794.011(4)(b) merits discussion. Citing Lomax v. State, 345 So.2d 719 (Fla. 1977) and State v. Abreau, 363 So.2d 1063 (Fla. 1978), Gillespie contends the trial court committed per se reversible error in failing to instruct the jury, as requested, on the lesser included offense of sexual battery by threatening to use force or violence likely to cause serious personal injury, § 794.011(4)(b). Gillespie was charged and convicted of sexual battery by using or threatening to use a deadly weapon, to wit: a knife in violation of § 794.011(3), Fla. Stat. The only evidence in the case is that Gillespie committed a sexual battery by using or threatening to use a deadly weapon, to wit: a knife.
The state takes this appeal from the trial court's order granting appellee/defendant's motion for a new trial. The issue presented is whether the trial court abused its discretion by granting defendant's motion for a new trial on the ground that refusal to instruct the jury on an allegedly lesser included offense constituted prejudicial error under Lomax v. State, 345 So.2d 719 (Fla. 1977). Because we find that the court's ruling was based upon a perceived error as to a matter of law which was not, in fact, error, we reverse.
In practice, because strict adherence to these rules often requires the giving of seemingly illogical and even absurd instructions in particular cases, both trial and appellate courts have frequently been persuaded to follow the dictates of common sense and reason in denying or approving the denial of required instructions. It is therefore important to note that in Lomax v. State, 345 So.2d 719 (Fla. 1977), the Supreme Court rejected the notions reflected in lines of cases that: (1) It is not error to refuse instructions on lesser included offenses when the trial court is of the opinion that based on the evidence no reasonable jury could infer that the crime charged was not committed; and (2) Lesser included offense instructions can be omitted when there exists overwhelming evidence that defendant committed the crime charged. The apparent clash between common sense and the mandates of the Brown decision can be substantially mitigated or eliminated entirely by keeping in mind two compelling reasons why these instructions must be given even in the face of evidence that would preclude any possibility that a particular lesser included offense instruction would actually fit the established facts of the case.
Rather, Montgomery flows from and was decided in a manner consistent with more than four decades of precedent. In Lomax v. State , 345 So. 2d 719 (Fla. 1977), disapproved in part on other grounds byAbreau , 363 So. 2d at 1064, this Court emphasized the role of the jury in deciding for which offense a defendant should be convicted. In fact, Lomax rejected the argument "that the failure to give an instruction of an immediately lesser included offense may be harmless if there is overwhelming evidence that the appellant committed the greater crime and the jury could not reasonably have found that only the lesser crime was committed."
State v. Bruns, 429 So.2d 307 (Fla. 1983). See State v. Abreau, 363 So.2d 1063 (Fla. 1978); Lomax v. State, 345 So.2d 719 (Fla. 1977); Brown v. State, 206 So.2d 377 (Fla. 1968); Hand v. State, 199 So.2d 100 (Fla. 1967). Under Rules of Criminal Procedure 3.490 and 3.510, the court was required to instruct the jury on the lower degrees of unlawful homicide and any other necessarily included offenses that might have been applicable depending on the kinds of evidentiary questions the jury was called upon to resolve.
It was this circumstance that led us to request the committee to recommend a table of lesser included offenses and modifications of our rules. We do not view these changes as invasions by the trial judge into the province of the jury — our concern in Lomax v. State, 345 So.2d 719 (Fla. 1977). In Lomax a trial judge refused to give a requested lesser offense instruction solely because there was ample evidence to support a guilty verdict on the higher offense.
(Emphasis added.)State v. Abreau, 363 So.2d 1063 (Fla. 1978); Lomax v. State, 345 So.2d 719 (Fla. 1977); Saunders v. State, 341 So.2d 773 (Fla. 1977); Adams v. State, 341 So.2d 765 (Fla. 1977); Gilford v. State, 313 So.2d 729 (Fla. 1975); Bailey v. State, 224 So.2d 296 (Fla. 1969); Battle v. State, 362 So.2d 464 (Fla. 4th DCA 1978); Thomas v. State, 351 So.2d 77 (Fla. 4th DCA 1977); Bryant v. State, 334 So.2d 160 (Fla. 2d DCA 1976); Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976); Lightfoot v. State, 331 So.2d 388 (Fla. 2d DCA 1976); Parker v. State, 330 So.2d 148 (Fla. 2d DCA 1976); Lomax v. State, 322 So.2d 650 (Fla. 2d DCA 1975). See Milazzo v. State, 359 So.2d 923 (Fla. 3d DCA 1978); Henry v. State, 344 So.2d 1311 (Fla. 3d DCA 1977); Silvestri v. State, supra; Lightfoot v. State, supra.