Defendant’s Conviction Reversed on Appeal After Prosecution Failed to Instruct Florida Jury on a Lesser Included Offense

Legal News GavelFlorida juries are given what some courts describe as an inherent pardon power to return a verdict of guilty for a lesser offense. However, the jury must be instructed as to lesser included offenses. If not, this may constitute a per se reversible error. In a recent decision, the appellate court found that the lower court erred in not instructing the jury on the charge of improper exhibition of a firearm, which was a permissive lesser included offense of attempted first-degree murder.

The appellant was involved in a verbal dispute with a woman at a convenience store. During the course of the argument, the appellant drew a gun and said he had a bullet for the woman and her fiance. The woman left and joined her family at the park. The appellant followed the woman and threatened to kill her and her family. He later fired shots at the woman and her aunt as they attempted to drive away. The appellant was charged with two counts of attempted first-degree murder in this Florida gun crime case.

The defense counsel requested an instruction on the improper exhibition of a firearm as a lesser included offense of attempted first-degree murder. The Florida jury instructions identify lesser included offenses, and, if requested, the court must instruct the jury on a lesser included offense of the crime charged against the accused, as long as it is supported by the information and evidence. Improper exhibition of a firearm was a lesser included offense in this case. However, the lower court did not allow the instruction, and the appellant appealed his conviction.

The elements of improper exhibition of a firearm are:  (1) having or carrying a firearm; (2) exhibiting the firearm in an aggressive, violent, or unwarranted manner; and (3) exhibiting the firearm in the presence of at least one other person. The court held that the appellant’s actions, firing a gun at other people while yelling at them while they were leaving by vehicle, met each element of the lesser included crime.

The result was that the failure to instruct the jury regarding the improper exhibition of a firearm offense constituted a per se reversible error.

If you are arrested, charged, or prosecuted for improper exhibition of a firearm or for any gun crime in St. Petersburg, consider hiring an experienced lawyer to assist you with your charges. Will Hanlon at Hanlon Law has over two decades of experience defending people charged with gun crimes in St. Petersburg. He strives to obtain favorable outcomes for his clients, including dismissals, reductions in the charges, or an acquittal. Do not hesitate; Hanlon Law can be reached by phone at 727-897-5413 or online via our website’s form.

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Florida Gun Crime Decision Discusses Meaning of “Possessing” a Firearm, Clearwater & St. Petersburg Criminal Lawyer Blog, August 30, 2017