
    Larry Lee GREGG, Appellant, v. STATE of Florida, Appellee.
    No. 97-2145.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 1998.
    Rehearing Denied Jan. 20, 1999.
    
      James M. Russ of Law Offices of James M. Russ, P.A., and Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   COBB, J.

The appellant, Larry Lee Gregg, was convicted of an attempt to commit a lewd act upon a child. Since the information upon which he was tried alleged the completed act and did not separately allege the lesser included offense of attempt, Gregg contends on appeal that he was improperly convicted of a crime with which he was not charged. He argues that attempt has been classified by the Florida Supreme Court as a permissive lesser included offense, and since it was not specifically charged the jury should not have been allowed, over his objection, to consider the offense of “attempt.”

The trial court apparently focused on Florida Rule of Criminal Procedure 3.510, which does not require that the charging document allude to the elements of attempt. It provides:

On an indictment or information on which the defendant is to be tried for any offense the jury may convict the defendant of: (a) an attempt to commit the offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support the attempt and the only evidence proves a completed offense_

Gregg points out that the Florida Supreme Court in 1981 divided lesser included offenses into two categories, the first category covering “necessary” offenses and the second “permissive” ones— and expressly included all attempts in the second category. See Matter of Use by Trial Courts of Standard Jury Instructions, 431 So.2d 594 (Fla.1981). Category 2 “permissive offenses” were defined by the court as those offenses “which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.”

Gregg argues that the criminal information against him in the instant case specifically charges him with the commission of a completed lewd act against a minor but does not include the elements of any attempt to coiri-mit such an act. The statute defining an attempt, section 777.04(1), provides:

(1) A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt....

Therefore, contends Gregg, pursuant to the explicit definitional language of the Florida Supreme Court in regard to a Category 2 offense, his conviction of an uncharged crime cannot stand as a matter of due process. He cites to Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); and Ray v. State, 403 So.2d 956 (Fla.1981), for the proposition that he was denied notice of the specific charges against him.

The language of Rule 3.510 supports the state’s position in this case that the attempt instruction may be given if an attempt is supported by the evidence and in the absence of the specific attempt charge. Sub-part (a) of the rules states that a jury may convict the defendant of an attempt to commit the offense if an attempt is supported by the evidence. It further provides, in contradistinction to its pre-1981 version, that the judge may not give an attempt instruction if “there is no evidence to support the attempt and the only evidence proves a completed offense.” The negative implication of the requirement of evidence to support an attempt is that there is no requirement that the attempt be specifically pleaded.

Accordingly, although it is true that attempt can be classified as a permissive lesser included offense in the sense that there will not be an instruction on it if the evidence points only to a completed offense, it is unlike a Brown Category 4 offense because the instruction does not depend upon the language of the charging document. Regarding notice, Brown held that the statute mandating an attempt instruction in every case provided “the organic requirement that the accusatory pleading apprise the defendant of all offenses of which he may be convicted.” Today, Rule 3.510 provides notice that the attempt instruction will be given when there is evidence to support the charge.

We find no merit in the second issue raised on appeal by Gregg relating to the condition of probation imposed upon him that he make every reasonable effort to move to a different location. See Graham v. State, 658 So.2d 642 (Fla. 5th DCA 1995).

AFFIRMED.

GRIFFIN, C.J., concurs.

THOMPSON, J., dissents "with opinion.

THOMPSON, J.,

dissents, with opinion.

I respectfully dissent.

Gregg was charged with lewd act upon a child. The information tracks section 800.04(1), Florida Statutes, and states that Gregg “handled or fondled [J.D.], a child under the age of sixteen (16) years in a lewd, lascivious or indecent manner, and in furtherance thereof LARRY LEE GREGG did ha'ndle the penis of [J.D.] ” (Emphasis supplied). This charges a completed lewd act, and there is no reference, inference or alternative pleading that the act was not completed. In fact, the evidence of guilt shows a completed act. If the state wanted an instruction on attempt, it should have filed an attempt charge as a separate count of the information. Because the state did not charge attempt, its request for an attempt instruction should have been denied. See Fla. R.Crim. P. 3.490, 3.510.

The Florida Supreme Court has divided lesser included offenses into two categories: category 1, necessary lesser included offenses; and, category 2, permissive lesser included offenses. See Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla.), modified on other grounds, 431 So.2d 599 (Fla.1981); see also Standard Jury Instructions in Criminal Cases (97-2), 23 Fla. L. Weekly S407, S407-S410, 723 So.2d 123,123-132 (Fla.1998). Attempt is not a necessarily lesser included offense of the crime charged, see Brown v. State, 206 So.2d 377 (Fla.1968), and it is now a category 2 permissive lesser included offense. If attempt were automatically charged along with the substantive charge, it would be a necessary lesser included crime for which an instruction must always be given. Category 2 permissive offenses were defined by the supreme court as those offenses “which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.” Since attempt is a category 2 offense, an instruction on it can be given only if it is contained in the charging document.

There are practical reasons for requiring the state to plead an attempt. The state has the exclusive duty of filing an information. The defendant may not file or amend an information. See Fla. R.Crim. P. 3.140. The defendant may move to dismiss the information, but may not dictate its content. Therefore, the defendant must devise a strategy and present a defense based upon the charges contained in the information. If the state can refuse to charge attempt and proceed only upon the substantive charge, but then, at the charge conference, obtain an attempt instruction, the defense is at a disadvantage because it did not have notice of the “new” charge, thus depriving the defendant of due process. See Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Ray v. State, 403 So.2d 956 (Fla.1981). Read together or separately, In the Matter of the Use By the Trial Court of the Standard Jury Instructions in Criminal Cases and rule 3.510 do not authorize an instruction on attempt absent charges thereof, and they do not give notice that the instruction might be given.

Further, the intent and effect of the order and the rule are to preclude an instruction on attempt when the only evidence is of a completed ciime. Here the only evidence of guilt is of a completed crime. The evidence was that Gregg, age 41, allowed two young boys, one of whom was J.D., to join him in his hot tub. While in the hot tub, Gregg involved the boys in games that resulted in the removal of the boys’ swim trunks. In one of the games, called “walk the duckie,” Gregg tied a string attached to a rubber duck around J.D.’s penis. He also tapped J.D.’s penis with his finger. During the trial, J.D. testified that Gregg did both acts. This proves not an attempt but the completed act of touching or fondling J.D’s penis. Indeed, during closing argument the prosecutor argued that the completed act had been done, not an attempt. The prosecutor stated:

Everything that happened in that hot tub leads you to believe that what he did was because he had lewd intention towards the child and I ask that you find him guilty of the charge as charged.
You will see that there are other options of attempted lewd act and a misdemeanor batter. Battery, just a simple battery. I submit to you that we’ve risen way above the level of a simple battery. This wasn’t an attempt, that this was an actual lewd act.
Well, it’s the state’s position that you find the defendant in this case guilty as charged. J.D. deserves justice in this case and I ask that you find him guilty as charged of lewd act upon a child. He did commit a lewd act uipon a child. (Emphasis supplied.)

Because Gregg was convicted of a crime not charged, and because the only evidence of guilt was the completed act, I would quash the conviction. 
      
      . In this case the Florida Supremo Court consolidated the four categories of offenses it had previously delineated in Brown v. State, 206 So.2d 377, 381 (Fla.1968), i.e., (1) crimes divisible into degrees; (2) attempts to commit offenses; (3) offenses necessarily included in the offense charged; and (4) offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
     