Burton v. State

NORTHCUTT, Judge.

A jury convicted Terry Burton of the robbery of the 801 Truck Stop. He argues the trial court should have instructed the jurors on the permissive, lesser-included offense of resisting a merchant.1 We agree.

When requested, an instruction on a permissive, lesser-included offense must be given when the information alleges all the elements of the included offense and the evidence at trial supports the instruction. State v. Weller, 590 So.2d 923, 926 (Fla.1991); Epps v. State, 728 So.2d 761, 762 (Fla. 2d DCA 1999). As was the ease in Epps, the trial court here denied the requested…