Randolph v. State

W. SHARP, Judge.

Randolph appeals his conviction for the offense of unlawful sale, delivery or possession with intent to sell or deliver a controlled substance.1 Randolph argues that the trial court erred in refusing his request to instruct the jury on the charge of simple possession, a permissive lesser included (category 2) offense.2 We agree.

To be entitled to an instruction on a category 2 offense, both the accusatory pleadings and the evidence must support the commission of the permissive lesser included offense. State v. Daophin, 533 So.2d 761 (Fla.1988); Wilcott v. State, 509 So.2d 261…