Lesser Included Offenses in Florida

September 7, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

A lesser-included offense refers to a criminal offense that has elements which are completely contained in another, more serious, criminal offense. It can also be referred to as another criminal law term – a necessarily included offense. It describes a phenomenon with lesser-included offenses where it is not possible to commit the more serious criminal offense without committing the lesser offense as well.

Criminal Laws in Florida

Criminal laws were created in order to penalize behavior considered to be against society’s values. This is the case whether the victim is singular or involves multiple individuals. Those convicted of criminal offenses may be incarcerated, fined, ordered to participate in a program, complete community service, or have certain rights and privileges revoked.

Criminal offenses are generally separated by the severity of the wrongdoing, with less serious offenses generally categorized as misdemeanors, and more serious offenses classified as felonies. If a criminal defendant commits more than one offense at a certain time, they can be charged with all of the offenses that occurred, or just some of them. For occasions where a suspect commits multiple offenses but only is charged with one, the more serious crime will generally be that singular charge.

Lesser Included Offenses

Some examples of lesser-included offenses are:

Larceny and Robbery

Larceny, generally referred to as theft, is the wrongful taking of another’s property with the intent to permanently deprive the owner of their property against their interest. Robbery, on the other hand, is all of the elements of larceny with the added element of force, intimidation, or a threat of violence. When someone commits a robbery, they necessarily commit larceny as it is a lesser-included offense. But a criminal defendant would only be able to be convicted of one or the other.  

To read more about larceny, visit our blog post here. To learn about robbery, visit our blog post here.

Voluntary Manslaughter and Murder

Voluntary manslaughter refers to the unlawful killing of another person without malice aforethought. It can be voluntary or involuntary. Murder encompasses voluntary manslaughter but includes malice aforethought. As such, someone cannot be convicted of both offenses. Malice aforethought is the planning of a crime with hatred or evil being wished upon the victim. 

To learn more about the different types of murder and their penalties, visit our blog post here.

Petit Larceny and Grand Larceny

Petit theft is Florida’s lowest level of theft and refers to the crime of theft in the amount of $100 or less. Grand larceny is the greater offense to petit larceny and refers to theft of $300 or more.

To read more about the different classifications of theft, visit our blog post here.

False Imprisonment and Kidnapping.

False imprisonment refers to forcibly, by threat or confinement, abducting or restraining an individual against their will without any authority. Kidnapping is more serious and means to forcibly, secretly, or by threat, confine, abduct, or imprison another person against their will and without lawful authority, with the intent to hold that person for ransom, as a hostage, to hurt or terrorize them, or to interfere with the performance of a government or political function.

To read more about the difference between false imprisonment and kidnapping, visit our blog post here.

How To Identify Lesser-Included Offenses

Pleadings Test

In order to determine if a crime is a lesser-included offense, some courts look to charging documents that describe the basis for the charges against the defendant. Some courts will look to this description to see if the person would have to commit the less serious offense in order to commit the more serious offense. For example, with burglary and theft, theft would be the lesser-included offense to burglary because, from reading charging documents, someone cannot commit burglary without also committing theft.

The Evidence Test

On occasion, courts will look to the evidence presented in the case being reviewed to determine whether an offense is lesser included. For example, if the State presented evidence that the defendant killed another person using a knife, assault with a deadly weapon would be the lesser-included offense to homicide.

The Elements Test

The majority view test being used to determine lesser-included offenses is the elemental test where a court looks to the formulaic elements that make up a criminal offense to decide whether all of the elements of one offense (false imprisonment) are included in the more serious offense (kidnapping) plus one more element. Therefore, under this test, assault with a deadly weapon would not be considered a lesser-included offense of homicide because the formulaic elements that make up the offenses are not similar plus one.

Tallahassee Criminal Defense Attorney

An expansive knowledge of criminal procedure and sentencing particulars is absolutely vital in forming a strong defense. If you or a loved one has been charged with a criminal offense in Florida, focus on retaining an experienced and qualified Tallahassee criminal defense attorney. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have the experience and passion to ensure that all defenses are explored in your or a loved one’s favor. Call us today at (850) 681-7777 or send an online message to discuss your case during an open and free consultation with an attorney in our legal team.

Written by Gabi D’Esposito

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