Lewis v. State

Ervin J. Lewis, appellant, asserts that the trial court committed per se reversible error when it refused to instruct the jury on the necessarily lesser-included offense of simple battery when the underlying charge was battery within a detention facility. § 784.082(3), Fla. Stat. (2014). We are constrained to reverse pursuant to the Florida Supreme Court’s rulings in State v. Wimberly, 498 So.2d 929 (Fla. 1986), and State v. Abreau, 363 So.2d 1063 (Fla. 1978),1 which held that the failure to instruct on the next immediate necessarily lesser-included offense is per se reversible error, even…