STATE of Florida, Petitioner, v. Jeffrey WIMBERLY, Respondent, 498 So. 2d 929

OVERTON, Justice. This is a petition to review Wimberly v. State, 476 So.2d 272 (Fla. 1st DCA 1985), in which the district court held that, in a prosecution for battery of a law enforcement officer, the trial court erred in failing to instruct the jury on the necessarily lesser included offense of simple battery.

In its decision, the district court certified the following question as being of great public importance: If the evidence at trial is sufficient to convict of a necessarily lesser included offense, and the same evidence also incontrovertibly shows that the necessarily lesser included offense could not have been committed without also committing the greater charged offense, does rule 3.510(b), Florida Rules of Criminal Procedure, require the trial judge to instruct the jury of the necessarily lesser included offense? Id. at 274. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

We answer the question in the affirmative and approve the opinion of the district court. Wimberly was charged with the unlawful possession of contraband in a correctional institution, two counts of battery of a law enforcement officer, and resisting an officer with violence. §§ 784.07, 843.01, and 944.47, Fla.Stat. (1981). At trial, the judge refused respondent’s request to instruct the jury on the necessarily lesser included offense of simple battery to the counts of battery of a law enforcement officer.

The jury convicted respondent of possession of contraband in a correctional institution, one count of battery of a law enforcement officer, and resisting an officer without violence. Only the conviction for battery of a law enforcement officer remains at issue. On appeal, the district court held that a trial judge is required to instruct the jury on all necessarily lesser included offenses to the offense charged, regardless of the degree of proof supporting the conviction for the greater offense.

The district court reversed Wimberly’s conviction for battery of a law enforcement officer and remanded for a new trial on that offense. In this proceeding, the state contends that present Florida Rule of Criminal Procedure 3.510 does not require a trial judge to instruct the jury on necessarily lesser included offenses for which the judge determines there is no supporting evidence. We disagree. To understand the intent of the present rule, a review of the decisions and rules concerning lesser included offenses is appropriate.

Prior to 1981, there were four categories of lesser included offenses: (1) degrees, (2) attempts, (3) necessarily lesser included offenses, and (4) offenses which may or may not be lesser included offenses. Brown v. State, 206 So.2d 377, 381 (Fla.1968). The lesser included offenses within the first three categories were determined from the information or indictment and the cited statutes: judicial discretion was not involved. Conversely, in the fourth category, the trial court considered the accusatory pleading and supporting proof to determine the existence of a lesser offense.

As explained in Brown, when an offense fell into category one, two, or three, the trial court was required, under all circumstances, to give a requested jury instruction on the lesser offenses of the charged offense. Only in the last category was the trial court given the responsibility to determine whether a lesser included instruction should be given, depending on the pleadings and the presented evidence. In 1981, on the recommendation of the Standard Jury Instructions Committee, this Court eliminated the first two Brown categories and created a new two-category scheme.

In the Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.1981). The first category, which incorporated some lesser degrees of offenses, contains offenses necessarily included in the offenses charged. The second category, which now incorporates all attempts and the remaining lesser degrees of offenses, encompasses offenses which may or may not be included in the offense charged, depending on the accusatory pleadings and evidence. Accompanying this change was a modification of our rules 3.490 and 3.510 of criminal procedure.

Before 1981, these rules and their predecessor statutes had been interpreted by Brown and other cases to “require instructions on attempts and on all lesser degrees of an offense even when there [was] no evidence of such.” See 431 So.2d at 597. As part of the new scheme, rule 3.490 was modified to provide: If the indictment or information charges an offense divided into degrees, the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence. The judge shall not instruct on any degree as to which there is no evidence.

Rule 3.510 became: Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of: (

a) an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense. (

b) any offense which as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence. The judge shall not instruct on any lesser included offense as to which there is no evidence. (Emphasis added.) In this cause, the state contends that the last sentence of the amended rule 3.510(

b) covers both category one, necessarily lesser included offense, and category two, offenses which may or may not be included in the offense charged. This

interpretation is contrary to the intention of the Committee in proposing and this Court in adopting the 1981 changes. The

schedule of lesser included offenses which we adopted includes “Notes on the Scope, Organization, and Use of These Instructions,” and states in part:

Schedule of Lesser Included Offenses: The order of the Supreme Court also directed that the problem of “Lesser Included Offenses” be addressed. This was accomplished by formulating the

Schedule of Lesser Included Offenses, which is included in this work. Before using the schedule, one should study the comment which immediately precedes it. The

schedule shows the category 1 lesser crimes on which charges must be given. Whether a charge of the lesser crimes under category 2 is necessary will require the trial judge to analyze the information or indictment and the proof to determine if elements of category 2 crimes may have been alleged and proved. Fla.Std.Jury Instr. (Crim.) Notes (2d ed.) (emphasis added). The modification of the

schedule of lesser included offenses and of rules 3.510 and 3.490 was a major change because it substantially reduced the number of lesser offenses on which the trial judge must instruct the jury. It broadened the trial judge’s authority to determine the appropriateness of instructing on attempts and degrees of offenses. It did not, however, extend that discretionary authority to necessarily lesser included offenses.

That intent was clearly conveyed in the opinion adopting this major change, when we said: We do not view these changes as invasions by the trial judge into the province of the jury — our concern in Lomax v. State, 345 So.2d 719 (Fla.1977). In Lo-max, a trial judge refused to give a requested lesser offense instruction solely because there was ample evidence to support a guilty verdict on the higher offense.

This is to be distinguished from the instant changes, which will eliminate the need to give a requested lesser offense, not necessarily included in the charged offense, when there is a total lack of evidence of the lesser offense. 431 So.2d at 597. A “necessarily lesser included offense” is, as the name implies, a lesser offense that is always included in the major offense. The trial judge has no discretion in whether to instruct the jury on a necessarily lesser included offense. Once the judge determines that the offense is a necessarily lesser included offense, an instruction must be given.

The requirement that a trial judge must give a requested instruction on a necessarily lesser included offense is bottomed upon a recognition of the jury’s right to exercise its “pardon power.” State v. Baker, 456 So.2d 419, 422 (Fla.1984). To adopt the state’s position would eliminate any need to distinguish between necessarily lesser included offenses and lesser included offenses. If there is to be a change in the intent and purpose of the rules concerning lesser included offenses, then it should be accomplished by a rule change, not by an

interpretation of this Court. Accordingly, the district court decision is approved. It is so ordered. McDonald, C.J., and BOYD and EHRLICH, JJ., concur. ADKINS and BARKETT, JJ., concur in result only. SHAW, J., dissents with an opinion. §§ 919.14 and 919.16, Fla.Stat. (1965).