When Does a Permissive Lesser Included Offense Exists In Florida ?
A permissive lesser included offense exists when "the two offenses appear to be separate on the face of the statutes, but the facts alleged in the accusatory pleadings are such that the lesser included offense cannot help but be perpetrated once the greater offense has been." State v. Weller, 590 So. 2d 923, 925 n.2 (Fla. 1991). Sanders, 944 So. 2d at 206.
Florida Rule of Criminal Procedure 3.510, entitled "Determination of Attempts and Lesser Included Offenses," provides the following:
On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of:
(b) any offense that 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.
In Sanders v. State, 944 So. 2d 203 (Fla. 2006), the court defined and explained the distinction between necessarily and permissive lesser-included offenses:
Lesser included offenses fall into two categories: necessary and permissive.
Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense. State v. Paul, 934 So. 2d 1167, 1176 (Fla. 2006).