Carvalho v. State

Defendant Reginaldo Carvalho appeals a conviction and sentence for trafficking in cocaine in excess of 400 grams, maintaining that the trial court erred in failing to give an instruction on simple possession of cocaine. We agree and reverse.

Simple possession of cocaine is a category one necessarily included lesser offense of trafficking in cocaine; failure to give an instruction on the next immediate lesser included offense is per se reversible error. State v. Abreau, 363 So.2d 1063 (Fla.1978); Daophin v. State, 511 So.2d 1037 (Fla. 4th DCA 1987); Butler v. State, 497 So.2d 1327 (Fla. 4th DCA…