10 Fla. L. Weekly Supp. 637a
Criminal law — Driving under influence — Jury instructions — Lesser included offenses — Court finds that defendant was entitled to jury instruction on lesser included offense of criminal attempt at his trial for driving under the influence, even though the state presented prima facie case of DUI , and it was uncontested that defendant was actually driving motor vehicle and that defendant had been drinking beer and had refused to submit to breath test — Motion for new trial granted
STATE OF FLORIDA vs. KERIC POWER, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 03-1683-WS. June 23, 2003. John Roger Smith, Judge. Counsel: Jeanne Stratis, Assistant State Attorney. Joseph A. Palmer, Assistant Public Defender.
ORDER ON MOTION FOR NEW TRIAL
THIS CAUSE having come before the court on a Motion for New Trial and the court having heard argument at a hearing on June 16, 2003, and otherwise being fully advised in the premises, the court makes the following findings and grants the Motion for New Trial.FACTS
On March 02, 2003 Keric Power was arrested in Deland, FL and charged with Driving Under the Influence (D.U.I.). Power was tried by a jury and convicted of D.U.I. At trial, defendant requested and was denied an instruction on the lesser included charge of criminal attempt, in this case, a 2nd degree misdemeanor.
On May 19, 2003 defendant filed a timely Motion for New Trial pursuant to Fla. R. Crim. P. 3.590 and 3.600(a)(7). This court must determine whether an instruction on criminal attempt, as a lesser included offense of D.U.I., is a proper instruction in a trial where the state presented a prima facie case of D.U.I. and the jury convicted the defendant of D.U.I., and where it was uncontested that the defendant was actually driving a motor vehicle, and that the defendant had been drinking beer and had refused to submit to a breath test.
ANALYSIS
Criminal attempt is a category 2 lesser-included offense of D.U.I. Standard Jury Instructions in Criminal Cases, 723 So.2d 123 (Fla. 1998). In Florida “attempt” is a separate crime under Florida Statute 777.04(1). This statute “criminalizes the intent” to commit a crime when it is coupled with an overt act toward the commission of the greater (charged) crime. State v. Wilkerson, 723 So.2d 614 (Fla. 5th DCA 1998) at 615.
There are a number of ways to attempt to commit D.U.I. For instance, where an intoxicated person sits behind the wheel (the overt act), or for that matter, merely opens the car door, with the intent to drive the vehicle, that person may be found guilty of an attempt to commit the crime of D.U.I. At that point in time the reason the crime of D.U.I. has not been committed is because the key has not yet been produced. It is only when that intoxicated person uses the key that the crime of D.U.I. is complete.
At trial a defendant may properly concede that he may have committed a lesser crime than D.U.I. As such, the offense of criminal attempt is a viable alternative to the all or nothing verdicts of guilty or innocence on the charge of D.U.I.
Since attempt is clearly an available lesser included offense in a D.U.I. case, the instruction must be given, even when the State presents a prime facie case of D.U.I. See State v. Bruns, 429 So.2d 307 (Fla. 1983).
In Bruns the Supreme Court of Florida required
“an instruction on an attempt whenever an attempt is an offense under the law . . .Furthermore, the attempt charge must be given even though, in the judge’s opinion the facts establish guilt of the crime charged rather than the attempt” State v. Bruns, 429 So.2d 307 (Fla. 1983), at 309.
The Bruns court went on to say that it is up to the jury to decide whether the defendant is guilty of the lesser offense or the greater offense. That evidentiary “matter (is) exclusively within the province of the jury”, at 310.
Even where the evidence is overwhelming that the defendant commited the greater, (charged) crime, that does not preclude giving an instruction on a category 2 lesser, upon request. Amado v. State, 585 So.2d 282 (Fla. 1991).
“we still allow juries to convict on lesser offenses under. . . the jury’s right to exercise its pardon power” id. at 283.
Although Keric Power was convicted of D.U.I. at trial, we do not know whether the jury might have found him guilty instead only of attempt because the jury was not given the opportunity to deliberate on that charge, and counsel was not able to argue that he could be found guilty of the less serious charge.
Moreover, the failure to instruct on a category 2 lesser offense to which a defendant is entitled is “per se reversible error”. Perez v. State, 709 So.2d 158 (Fla. 5th DCA 1998) at 159.
Finally, this court considered the question of whether a person who is charged with D.U.I. and ultimately convicted of criminal attempt has been convicted of a crime he was not charged with, and had no notice of.
The Fifth District Court of Appeal addressed this question in Gregg v. State, 724 So.2d 158 (Fla. 5th DCA 1998), finding that the attempt instruction does not depend on the language of the charging document and that
“Rule 3.510 provides notice that the attempt instruction will be given when there is evidence to support the charge” at 160.
The defendant’s theory in the instant case is that, at most, he was guilty of criminal attempt and he should have been able to argue that theory to the jury.
A defendant is entitled to have the jury instructed on the law applicable to this theory of defense no matter how flimsy, or weak, or improbable the evidence supporting his theory. Arthur v. State, 717 So.2d 193 (Fla. 5th DCA 1998), Bryant v. State, 412 So.2d 347 (Fla. 1982).
CONCLUSION
The defendant in the instant case is entitled to an instruction on the lesser included offense of criminal attempt at his driving under the influence trial.
It is, therefore, ORDERED and ADJUDGED that the Motion for New Trial is hereby GRANTED, and the jury determination of guilt is VACATED.
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