Torres v. State

Upon the State’s proper confession of error, we reverse the defendant’s conviction and sentence for trafficking in cocaine. The trial court erred in failing to instruct the jury on the lesser included offense of simple possession of cocaine. See Amado v. State, 585 So.2d 282, 282 (Fla.1991)(“An instruction on a permissive lesser included offense must be given Vhen the pleadings and the evidence demonstrate that the lesser included offense is included in the offense charged.’ ”); Williams v. State, 594 So.2d 824 (Fla. 3d DCA 1992)(same).

Reversed and remanded for a new trial.