Florida Rule of Criminal Procedure 3.490 - DETERMINATION OF DEGREE OF OFFENSE | Syfert Law

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Florida Rule of Criminal Procedure 3.490

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RULE 3.490. DETERMINATION OF DEGREE OF OFFENSE
If the indictment or information charges an offense divided
into degrees, the jury may find the defendant guilty of the offense
charged or any lesser degree supported by the evidence. The judge
shall not instruct on any degree as to which there is no evidence.

Committee Notes

1968 Adoption. Same as 919.14.

1972 Amendment. Same as prior rule except references to
affidavit have been deleted.

Cases Citing Rule 3.490

Total Results: 51

Matter of Use by Tr. Cts. of Stand. Jury Inst.

431 So. 2d 594

Supreme Court of Florida | Filed: Apr 16, 1981 | Docket: 382376

Cited 105 times | Published

The court shall charge the jury in this regard. Rule 3.490 provides: If the indictment or information charges

Category: Criminal Procedure

State v. Wimberly

498 So. 2d 929, 11 Fla. L. Weekly 633

Supreme Court of Florida | Filed: Dec 11, 1986 | Docket: 1699890

Cited 89 times | Published

431 So.2d at 597. As part of the new scheme, rule 3.490 was modified to provide: If the indictment or

Category: Criminal Procedure

Aubrey Dennis Adams v. Louie L. Wainwright, and Jim Smith

764 F.2d 1356, 1985 U.S. App. LEXIS 30797

Court of Appeals for the Eleventh Circuit | Filed: Jun 17, 1985 | Docket: 572744

Cited 72 times | Published

Procedure, 403 So.2d 979 (Fla.1981); Fla.R.Crim.P. 3.490. The petitioner claims that, under the old

Category: Criminal Procedure

State v. Baker

456 So. 2d 419

Supreme Court of Florida | Filed: Jul 12, 1984 | Docket: 1447524

Cited 68 times | Published

sections. Similar provisions are now located in Fla.R.Crim.P. 3.490 and 3.510. [4] In re Use by Trial Courts

Category: Criminal Procedure

Martin v. State

342 So. 2d 501

Supreme Court of Florida | Filed: Feb 3, 1977 | Docket: 695760

Cited 34 times | Published

of this review. Petitioner asserts that under Rule 3.490, Fla.R.Crim.P., and Brown v. State, 206 So.2d

Category: Criminal Procedure

Baker v. State

425 So. 2d 36

District Court of Appeal of Florida | Filed: Dec 8, 1982 | Docket: 1182148

Cited 33 times | Published

Brown v. State, 245 So.2d 68 (Fla. 1971); Fla.R.Crim.P. 3.490, 3.510. Since count one in the instant case

Category: Criminal Procedure

Linehan v. State

442 So. 2d 244

District Court of Appeal of Florida | Filed: Nov 9, 1983 | Docket: 18334

Cited 32 times | Published

indicted for second degree depraved mind murder, but rule 3.490 does not require that a defendant be charged

Category: Criminal Procedure

State v. Terry

336 So. 2d 65

Supreme Court of Florida | Filed: Apr 22, 1976 | Docket: 2521736

Cited 30 times | Published

440 Rule 3.450 Rule 3.460 Rule 3.470 Rule 3.490 Rule 3.500 Rule 3.510 Rule 3.520 Rule 3

Category: Criminal Procedure

IT v. State

694 So. 2d 720, 1997 WL 228417

Supreme Court of Florida | Filed: May 8, 1997 | Docket: 1450130

Cited 26 times | Published

offense. Id. at 383. [7] This rule, along with rule 3.490, was amended in 1981 to reduce the number of

Category: Criminal Procedure

Jones v. State

666 So. 2d 960, 1995 WL 779830

District Court of Appeal of Florida | Filed: Jan 10, 1996 | Docket: 2488487

Cited 26 times | Published

to the purpose of the 1981 amendments to Fla.R.Crim.P. 3.490 and 3.510, but we nonetheless feel compelled

Category: Criminal Procedure

Jones v. State

666 So. 2d 960, 1995 WL 779830

District Court of Appeal of Florida | Filed: Jan 10, 1996 | Docket: 2488487

Cited 26 times | Published

to the purpose of the 1981 amendments to Fla.R.Crim.P. 3.490 and 3.510, but we nonetheless feel compelled

Category: Criminal Procedure

James Ernest Hitchcock v. Louie L. Wainwright

745 F.2d 1332, 1985 U.S. App. LEXIS 27764

Court of Appeals for the Eleventh Circuit | Filed: Jan 8, 1985 | Docket: 2414711

Cited 19 times | Published

see Fla.Stat. § 919.14 (1969) (replaced by Fla.R. Crim.P. 3.490, Fla.Rules of Court). If the defense requested

Category: Criminal Procedure

In Re Florida Rules of Criminal Procedure

403 So. 2d 979, 1981 Fla. LEXIS 2854

Supreme Court of Florida | Filed: Sep 24, 1981 | Docket: 341374

Cited 19 times | Published

approve and adopt the proposed rules as follows: Rule 3.490. Determination of Degree of Offense If the indictment

Category: Criminal Procedure

Johnson v. State

314 So. 2d 248

District Court of Appeal of Florida | Filed: Jun 12, 1975 | Docket: 1420382

Cited 19 times | Published

court erred in this regard. The clear language of Rule 3.490, RCrP requires that the court instruct the jury

Category: Criminal Procedure

Green v. State

475 So. 2d 235, 10 Fla. L. Weekly 467

Supreme Court of Florida | Filed: Aug 30, 1985 | Docket: 1301864

Cited 17 times | Published

supported by the evidence. Prior to October 1, 1981, rule 3.490 provided that when the offense charged was divided

Category: Criminal Procedure

Holloway v. State

362 So. 2d 333

District Court of Appeal of Florida | Filed: Aug 8, 1978 | Docket: 1715819

Cited 14 times | Published

121, 25 So.2d 73 (1946). It is true that Fla.R.Crim.P. 3.490[1] and 3.510[2] as interpreted in Brown v

Category: Criminal Procedure

Nurse v. State

658 So. 2d 1074, 20 Fla. L. Weekly Fed. D 1555

District Court of Appeal of Florida | Filed: Jul 5, 1995 | Docket: 439639

Cited 9 times | Published

offense "as to which there is no evidence," Fla.R.Crim.P. 3.490 — aside from proof of the charged offense

Category: Criminal Procedure

Ables v. State

338 So. 2d 1095

District Court of Appeal of Florida | Filed: Oct 18, 1976 | Docket: 455291

Cited 8 times | Published

(Fla. 1968), construing § 919.14, F.S. 1965, now Rule 3.490, R.Cr.P. The Rule provides that when the indictment

Category: Criminal Procedure

Williams v. State

399 So. 2d 999

District Court of Appeal of Florida | Filed: May 19, 1981 | Docket: 428272

Cited 7 times | Published

the degrees of the offense found in separate Rule 3.490 under Section XI pertaining to The Verdict. [7]

Category: Criminal Procedure

Robinson v. State

338 So. 2d 1309

District Court of Appeal of Florida | Filed: Nov 5, 1976 | Docket: 161132

Cited 7 times | Published

stated: "Section 919.14 [the predecessor of Fla.R. Crim.P. 3.490], applies only to those crimes which are

Category: Criminal Procedure

Higgins v. State

565 So. 2d 698, 1990 WL 98553

Supreme Court of Florida | Filed: Jul 12, 1990 | Docket: 1725816

Cited 6 times | Published

second-degree charge is mandated. In Green we noted: Rule 3.490 now provides for the determination of the degree

Category: Criminal Procedure

Keenan v. State

379 So. 2d 147

District Court of Appeal of Florida | Filed: Jan 16, 1980 | Docket: 1681350

Cited 6 times | Published

Brown v. State, 206 So.2d 377 (Fla. 1968); Fla.R. Crim.P. 3.490, but we are also aware of the doctrine of

Category: Criminal Procedure

Vickery v. State

869 So. 2d 623, 2004 WL 534624

District Court of Appeal of Florida | Filed: Mar 19, 2004 | Docket: 1175167

Cited 5 times | Published

attempts and lesser included offenses. See Fla. R.Crim. P. 3.490 & 3.510(b). Moreover, the Florida courts

Category: Criminal Procedure

Herrington v. State

538 So. 2d 850, 1989 WL 14970

Supreme Court of Florida | Filed: Feb 23, 1989 | Docket: 472535

Cited 5 times | Published

Criminal Procedure 3.490, which reads as follows: RULE 3.490 DETERMINATION OF DEGREE OF OFFENSE If the indictment

Category: Criminal Procedure

Barritt v. State

517 So. 2d 65, 1987 WL 2668

District Court of Appeal of Florida | Filed: Dec 15, 1987 | Docket: 1528049

Cited 5 times | Published

degree murder. Williams as well as the amended Rule 3.490 Florida Rules of Criminal Procedure, which it

Category: Criminal Procedure

Rodriguez v. State

443 So. 2d 286

District Court of Appeal of Florida | Filed: Dec 22, 1983 | Docket: 371820

Cited 5 times | Published

Brown v. State, 206 So.2d 377 (Fla. 1968); Fla.R.Crim.P. 3.490, 3.510. V. Finally, we address the question

Category: Criminal Procedure

Harris v. State

935 So. 2d 1259, 2006 WL 2380469

District Court of Appeal of Florida | Filed: Aug 18, 2006 | Docket: 1245415

Cited 4 times | Published

attempts and lesser-included offenses. See Fla. R.Crim. P. 3.490 & 3.510(b). Moreover, the Florida courts

Category: Criminal Procedure

Mitchell v. State

304 So. 2d 466

District Court of Appeal of Florida | Filed: Dec 17, 1974 | Docket: 1437435

Cited 4 times | Published

seeks to read RCrP 3.390(a) in pari materia with Rule 3.490 rather than Rule 3.510.) The defendant relies

Category: Criminal Procedure

Johnson v. State

423 So. 2d 614

District Court of Appeal of Florida | Filed: Dec 21, 1982 | Docket: 1528691

Cited 3 times | Published

murder. Murder is an offense divided into degrees. Rule 3.490, Florida Rules of Criminal Procedure, prior to

Category: Criminal Procedure

In re Trial Courts of the Standard Jury Instructions in Criminal Cases

431 So. 2d 594, 1981 Fla. LEXIS 2937

Supreme Court of Florida | Filed: Apr 16, 1981 | Docket: 64597056

Cited 3 times | Published

The court shall charge the jury in this regard. Rule 3.490 provides: If the indictment or information charges

Category: Criminal Procedure

Herman v. State

275 So. 2d 264

District Court of Appeal of Florida | Filed: Mar 28, 1973 | Docket: 382451

Cited 3 times | Published

the defendant. Based upon the clear language of Rule 3.490, FRCrP, 33 F.S.A. (former Section 919.14, F.S

Category: Criminal Procedure

Gordon v. State

219 So. 3d 189, 2017 WL 1927720, 2017 Fla. App. LEXIS 6566

District Court of Appeal of Florida | Filed: May 10, 2017 | Docket: 6060366

Cited 2 times | Published

1977) (superseded on other grounds by Fla. R. Crim. P. 3.490); Humphrey v. State, 690 So.2d 1351 (Fla

Category: Criminal Procedure

State v. Young

932 So. 2d 1278, 2006 Fla. App. LEXIS 11810, 2006 WL 1933415

District Court of Appeal of Florida | Filed: Jul 14, 2006 | Docket: 64845687

Cited 1 times | Published

2004) (Sawaya, C.J., concurring) (citing Fla. R.Crim. P. 3.490, 3.510(b)). “A jury pardon, however, is

Category: Criminal Procedure

Higgs v. State

801 So. 2d 269, 2001 WL 1575677

District Court of Appeal of Florida | Filed: Dec 12, 2001 | Docket: 1744805

Cited 1 times | Published

evidence of such." As part of the new scheme, rule 3.490 was modified to provide: If the indictment or

Category: Criminal Procedure

Robert Wayne Lincoln v. State of Florida

District Court of Appeal of Florida | Filed: Dec 30, 2024 | Docket: 69505486

Published

degree as to which there is no evidence. Fla. R. Crim. P. 3.490. Section 800.04(5)(a)-(e) clearly

Category: Criminal Procedure

McKee v. State of Florida

District Court of Appeal of Florida | Filed: Nov 13, 2024 | Docket: 69369593

Published

no evidence supports giving the charge. Fla. R. Crim. P. 3.490. If the allegations and evidence are the

Category: Criminal Procedure

TERRENCE BARNETT v. STATE OF FLORIDA

District Court of Appeal of Florida | Filed: Nov 6, 2019 | Docket: 16432691

Published

1977), superseded on other grounds by, Fla. R. Crim. P. 3.490; see also Daugherty v. State, 211 So. 3d

Category: Criminal Procedure

TERRENCE BARNETT v. STATE OF FLORIDA

District Court of Appeal of Florida | Filed: Aug 14, 2019 | Docket: 16055458

Published

1977), superseded on other grounds by, Fla. R. Crim. P. 3.490; see also Daugherty v. State, 211 So. 3d

Category: Criminal Procedure

Vernon Stevens v. State of Florida

226 So. 3d 787, 42 Fla. L. Weekly Supp. 807, 2017 Fla. LEXIS 1856, 2017 WL 4054164

Supreme Court of Florida | Filed: Sep 14, 2017 | Docket: 6155327

Published

offense as to which there is no evidence.”); Fla. R. Crim. P. 3.490 (“The judge shall not instruct on any degree

Category: Criminal Procedure

Thomas Daugherty v. State of Florida

211 So. 3d 29, 42 Fla. L. Weekly Supp. 1, 2017 Fla. LEXIS 106

Supreme Court of Florida | Filed: Jan 19, 2017 | Docket: 4570207

Published

homicide.”), superseded on other grounds by Fla. R. Crim. P. 3.490. While an instruction on a non-homicide

Category: Criminal Procedure

Gregg v. State

724 So. 2d 158, 1998 Fla. App. LEXIS 15962, 1998 WL 879089

District Court of Appeal of Florida | Filed: Dec 18, 1998 | Docket: 64785466

Published

instruction should have been denied. See Fla. R.Crim. P. 3.490, 3.510. The Florida Supreme Court has divided

Category: Criminal Procedure

I.T. v. State

694 So. 2d 720, 22 Fla. L. Weekly Supp. 244, 1997 Fla. LEXIS 604

Supreme Court of Florida | Filed: May 8, 1997 | Docket: 64774062

Published

offense. Id. at 383. . This rule, along with rule 3.490, was amended in 1981 to reduce the number of

Category: Criminal Procedure

Wishop v. State

490 So. 2d 1380, 1986 Fla. App. LEXIS 8866, 11 Fla. L. Weekly 1570

District Court of Appeal of Florida | Filed: Jul 17, 1986 | Docket: 64620456

Published

degree charged or of any lesser degree. See Fla.R.Crim.P. 3.490 and Fla.R.Crim.P. 3.510(b). In the instant

Category: Criminal Procedure

Furr v. State

464 So. 2d 693, 10 Fla. L. Weekly 602, 1985 Fla. App. LEXIS 12637

District Court of Appeal of Florida | Filed: Mar 8, 1985 | Docket: 64610346

Published

support a finding of guilt for that offense. Fla.R. Crim.P. 3.490. Obviously, second degree (depraved mind)

Category: Criminal Procedure

Green v. State

453 So. 2d 526, 9 Fla. L. Weekly 1698, 1984 Fla. App. LEXIS 13977

District Court of Appeal of Florida | Filed: Aug 2, 1984 | Docket: 64606136

Published

degree as to which there is no evidence. Fla.R.Crim.P. 3.490.

Category: Criminal Procedure

Williams v. State

427 So. 2d 775, 1983 Fla. App. LEXIS 18618

District Court of Appeal of Florida | Filed: Feb 11, 1983 | Docket: 64595439

Published

appellant’s contention to be totally without merit. Rule 3.490, Florida Rules of Criminal Procedure, was amended

Category: Criminal Procedure

Sparrow v. State

415 So. 2d 28, 1982 Fla. App. LEXIS 20782

District Court of Appeal of Florida | Filed: Mar 3, 1982 | Docket: 64590523

Published

Florida Statutes (1979). *29At the time of trial, Rule 3.490, Florida Rules of Criminal Procedure, provided:

Category: Criminal Procedure

Thomas v. State

406 So. 2d 538, 1981 Fla. App. LEXIS 21614

District Court of Appeal of Florida | Filed: Nov 12, 1981 | Docket: 64586307

Published

Brown v. State, 206 So.2d 377 (Fla.1968) and Fla.R.Crim.P. 3.490, so that it may exercise the power of “jury

Category: Criminal Procedure

Williams v. State

399 So. 2d 999, 1981 Fla. App. LEXIS 19860

District Court of Appeal of Florida | Filed: May 19, 1981 | Docket: 64583312

Published

the degrees of the offense found in separate Rule 3.490 under Section XI pertaining to The Verdict.

Category: Criminal Procedure

Rollins v. State

369 So. 2d 950, 1978 Fla. App. LEXIS 17279

District Court of Appeal of Florida | Filed: Aug 15, 1978 | Docket: 64569682

Published

statute has become codified in what is now Fla.R.Crim.P. 3.490. The State contends that this provision of

Category: Criminal Procedure

Florida Bar

345 So. 2d 655, 1977 Fla. LEXIS 4095

Supreme Court of Florida | Filed: Mar 17, 1977 | Docket: 64558421

Published

of the adjudicatory hearing. (k) Based on Fla.R.Crim.P. 3.490. (l) Based on Fla.R.Crim.P. 3.500. (m) Based

Category: Criminal Procedure