Wade v. State
Wade v. State
Opinion of the Court
Marsaias Wade was charged in a five-count information with the following: Count I — attempted carjacking; Count II — kidnapping with intent to commit a felony with a firearm; Count III — aggravated assault with a firearm; Count IV— conspiracy to commit robbery with a deadly weapon; and Count V — attempted robbery with a firearm. The jury acquitted Wade on Count II, returned a guilty verdict on Count III for the lesser-included offense of assault, and found him guilty as charged on Counts I, IV and V. The trial court subsequently set aside the conviction on Count I.
On appeal, Wade challenges only his convictions for conspiracy to commit robbery with a deadly weapon (Count IV) and attempted robbery with a firearm (Count V). He argues that the trial court erred in failing, upon request, to instruct the jury on the lesser-included offenses of conspiracy to commit robbery and attempted robbery. We reverse.
The State properly concedes that the trial court committed error in failing to instruct the jury on the lesser-included offense of attempted robbery. See Gomez v. State, 5 So.3d 700, 701-02 (Fla. 5th DCA 2009) (“A trial court must instruct the jury on necessarily-included lesser offenses when a timely request is made to do so.”). However, the State argues that Wade failed to preserve for appellate review his claim regarding the failure to instruct the jury on the lesser-included offense of conspiracy to commit robbery. We disagree. Although defense counsel’s argument at the charge conference was less than artful, the trial court seemed clearly aware of the request:
I’m going to go out on a limb and deny the request. Although, again, I understand exactly what you’re saying. With the exception of the requested lessors on the attempt and conspiracy charges, are there any additional or different lessers that you would be requesting?
REVERSED and REMANDED for a new trial on the charges of conspiracy to commit robbery with a deadly weapon and attempted robbery with a firearm.
. Wade was sentenced to fifteen years on the attempted robbery with a firearm charge and five years’ probation on the conspiracy to commit robbery with a deadly weapon count. On the assault charge, Wade was sentenced to "time served.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.