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Sorrell v. State10/15/2003
the language of rule 3.151(c) on a lesser charge in a non-jury trial if a conviction on the lesser charge is one of the outcomes permitted by Florida Rule of Criminal Procedure 3.510.
The trial judge has the inherent power to find a defendant guilty of a lesser included offense. We acknowledged this power in Payne v. State, 275 So. 2d 261, 262 (Fla. 4th DCA 1973), an appeal from a non-jury trial where we observed that both Florida Rule of Criminal Procedure 3.510 and "case construction" allowed a defendant to be convicted of a lesser included offense. In F.N. v. State, 745 So. 2d 1149, 1151 (Fla. 4th DCA 1999), we assumed that Rule 3.510 applied to non-jury trials when we wrote that Florida Rule of Juvenile Procedure 8.110(j) gives "the trial judge the same options for finding a defendant guilty of a lesser included offense as does Rule 3.510." Rule 3.510 thus allows a judge to find a defendant guilty of an attempt to commit an offense and of lesser included offenses.
We have found no authority for the proposition that in a non-jury trial a judge may find a defendant guilty of a lesser included offense only when the parties argue to the court that guilt on a lesser charge is a potential outcome. Unlike a jury, a judge is presumed to know of all lesser included offenses.
The judgment and sentence for the conviction of section 322.341 are reversed. The case is remanded for a new trial on any offense that falls under rule 3.510(b).
POLEN and WARNER, JJ., concur.
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