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Burney v. State

District Court of Appeal of Florida, Second District
Jul 31, 1981
402 So. 2d 38 (Fla. Dist. Ct. App. 1981)

Summary

In Burney v. State, 402 So.2d 38 (Fla. 2d DCA 1981), the court determined that the trial court had erred in failing to give a required jury instruction, but noted that, because of changes in the standard jury instructions, which would control at any retrial, the instruction would not be required.

Summary of this case from Dewberry v. State

Opinion

No. 80-1502.

July 31, 1981.

Appeal from the State Court, Pinellas County, Mark R. McGarry, Jr., J.

Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.


Devard B. Burney appeals his conviction and sentence for possession of a firearm by a convicted felon on several grounds. We feel that none of the grounds are meritorious and affirm. In doing so, however, we fell we should comment on the issue raised by the appellant concerning the trial court's refusal to give the appellant's requested instruction on attempted possession of a firearm by a convicted felon. The appellant preserved the issue by properly objecting to the court's failure to give the requested instruction.

This court has recognized that there does exist the crime of attempted possession of a firearm by a convicted felon. Porter v. State, 363 So.2d 41 (Fla.2d DCA 1978). Ordinarily, we would be required to reverse for failure to give the required instruction. Lomax v. State, 345 So.2d 719 (Fla. 1977); State v. Terry, 336 So.2d 65 (Fla. 1976). Those cases speak in terms of requiring lesser included instructions even when the trial court believes the evidence adduced was not reasonably susceptible to an inference by the jury which would support the lesser included offense. In the case for review here, there was no evidence at all that would support the lesser offense of attempted possession. Regardless, were it not for the new standard jury instructions, effective July 1, 1981, we would still be forced to reverse. In the Matter of the Use by Trial Courts of the Standard Jury Instructions in Criminal Cases and the Standard Jury Instructions in Misdemeanor Cases, Nos. 56,734 and 58,799 (Fla. Apr. 16, 1981). The Florida Supreme Court indicated that a charge of a lesser included offense is not required when not supported by the evidence at trial. Id., slip op. at 4-6. The new standard jury instructions would control in any retrial of the appellant's case if we reversed. Therefore, on a retrial appellant would not be entitled to the instruction on attempted possession. We are not required to do a useless act nor are we required to act if it is impossible for us to grant effectual relief. Since no practical result can be attained by ordering a retrial on the failure to give the charge of attempted possession of a firearm by a convicted felon, we affirm. See In re Estate of Lindsay, 207 So.2d 736 (Fla. 4th DCA 1968).

BOARDMAN, A.C.J., and RYDER, J., concur.


Summaries of

Burney v. State

District Court of Appeal of Florida, Second District
Jul 31, 1981
402 So. 2d 38 (Fla. Dist. Ct. App. 1981)

In Burney v. State, 402 So.2d 38 (Fla. 2d DCA 1981), the court determined that the trial court had erred in failing to give a required jury instruction, but noted that, because of changes in the standard jury instructions, which would control at any retrial, the instruction would not be required.

Summary of this case from Dewberry v. State

In Burney v. State, 402 So.2d 38 (Fla.2d DCA 1981), the issue was whether appellant was entitled to an instruction on an attempt to commit the crime for which he was being tried.

Summary of this case from Kocsis v. State

In Burney the court recognized that the standard jury instructions in criminal cases were being changed by not requiring an instruction on attempt in a case in which the only evidence proved a completed offense. It concluded that on retrial the defendant would not be entitled to the instruction on attempt, there being no evidence thereof, and that the reviewing court was not required to do a useless act, nor to act when impossible to grant effectual relief. The court did acknowledge, however, that but for the change in the instruction, it would be required to reverse.

Summary of this case from Strasser v. State
Case details for

Burney v. State

Case Details

Full title:DEVARD B. BURNEY, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Second District

Date published: Jul 31, 1981

Citations

402 So. 2d 38 (Fla. Dist. Ct. App. 1981)

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