Hill v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JAMES HILL, ) ) Appellant, ) ) v. ) ) STATE OF FLORIDA, ) ) Appellee. ) ) _____________________________________ ) CASE NO. 2D01-2866 Opinion filed July 10, 2002. Appeal from the Circuit Court for Manatee County; Charles E. Williams, Judge. James Marion Moorman, Public Defender, and Gonzalo Alberto Gayoso, Special Assistant Public Defender, Bartow, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee. BLUE, Chief Judge. James Hill appeals his conviction for sale of cocaine within 1000 feet of a place of worship. We address only his issue concerning the jury instructions. Because the trial court failed to instruct the jury on a category one lesser included offense, we reverse and remand for a new trial. At the charge conference, Mr. Hill s counsel requested the trial judge to give the jury the standard instruction for possession of cocaine. Although counsel failed to point out to the trial court that the requested instruction was indeed a required category one lesser, counsel did in fact request the instruction. The jury instructions applicable to this case specifically state that possession is a category one lesser of sale of cocaine within 1000 feet of a place of worship. The State s argument that the Supreme Court Committee on Standard Jury Instructions in Criminal Cases did not intend to include the possession as a category one lesser to sale of cocaine within 1000 feet of a place of worship is without merit. Whether or not the Committee so intended, the Standard Jury Instructions have been adopted by the Florida Supreme Court. In re Standard Jury Instructions-Criminal Cases (99-1), 765 So. 2d 692 (Fla. 2000). Accordingly, we reverse Mr. Hill s conviction and remand for a new trial. NORTHCUTT and SILBERMAN, JJ., Concur. -2-

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