Summary
reversing conviction for trafficking because of failure to give instruction on simple possession
Summary of this case from Perez v. StateOpinion
Case No. 96-2312
Opinion filed July 2, 1997.
An Appeal from the Circuit Court for Dade County, Jennifer D. Bailey, Judge.
Margaret S. Brodsky, for appellant.
Robert A. Butterworth, Attorney General, and Doquyen T. Nguyen, Assistant Attorney General, for appellee.
Before JORGENSON, GERSTEN, and FLETCHER, JJ.
Upon the State's proper confession of error, we reverse the defendant's conviction and sentence for trafficking in cocaine. The trial court erred in failing to instruct the jury on the lesser included offense of simple possession of cocaine. See Amado v. State, 585 So.2d 282, 282 (Fla. 1991)("An instruction on a permissive lesser included offense must be given `when the pleadings and the evidence demonstrate that the lesser included offense is included in the offense charged.'"); Williams v. State, 594 So.2d 824 (Fla. 3d DCA 1992)(same).
Reversed and remanded for a new trial.