Opinion
No. 71-581.
December 12, 1972.
Appeal from Court of Record for Broward County; M. Daniel Futch, Jr., Judge.
Norman D. Zimmerman, Pompano Beach, for appellants.
Robert L. Shevin, Atty. Gen., Tallahassee, and Andrew I. Friedrich, Asst. Atty. Gen., West Palm Beach, for appellee.
Affirmed.
MAGER, J., and MELVIN, WOODROW M., Associate Judge, concur.
WALDEN, J., dissents, with opinion.
I would reverse and remand for a new trial because of the failure of the trial court to charge the jury upon the lesser included offenses.
Florida Criminal Procedure Rule 3.510, 33 F.S.A., provides:
"Rule 3.510 Conviction of Attempt; Lesser Included Offense
"Upon an indictment, information or affidavit on which the defendant is tried for any offense the jurors may convict the defendant of an attempt to commit such offense if such attempt is an offense, or may convict him of any offense which is necessarily included in the offense charged. The Court shall charge the jury in this regard." (Emphasis added.)
The language is mandatory. Even where a defendant objects to the giving of lesser included offenses, the trial court is required to charge as to them. The majority decision is in direct conflict with State v. Washington, Fla. 1972, 268 So.2d 901.
It is my further view that refusal of pre-trial discovery to appellants was error.