
    Charles BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1121.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 1981.
    Rehearing Denied March 18, 1981.
    
      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was charged with robbing one Patricia A. Faris of a sum of money in excess of $100 by force, violence, assault, and putting said victim in fear, in violation of Section 812.13(2)(c), Florida Statutes (1978). A jury found appellant guilty of the lesser included offense of grand theft. From a judgment of guilty and sentence of five years in prison, appellant has perfected this appeal.

The sole question on appeal is whether the trial court erred in denying appellant’s requested instruction on the lesser included offenses of aggravated assault and assault.

Grand theft is a felony of the third degree, as is aggravated assault. Assault is a misdemeanor of the second degree. Thus, it would appear that the failure to instruct on aggravated assault, while error, was harmless error because aggravated assault is a crime of the same magnitude as the crime of which appellant was convicted. Riley v. State, 367 So.2d 1091 (Fla. 3rd DCA 1979). However, the failure to charge on assault is not harmless because the jury was never given the opportunity to invoke its “inherent pardon power.”

Accordingly, we reverse the judgment and sentence and remand the cause for a new trial.

REVERSED AND REMANDED with directions.

RUTTER, WILLIAM, Jr., Associate Judge, concurs.

BERANEK, J., concurs specially, with opinion.

BERANEK, Judge,

concurring specially:

I specially concur to raise, once again, a question as to the necessity for reversal in a case of this sort. Although I agree that State v. Abreau, 363 So.2d 1063 (Fla.1978), requires it, I suggest that the concept of jury pardons should be re-examined. Notwithstanding the judicial establishment of the jury pardon theory, we do not instruct juries about their right to pardon defendants. In fact, the standard instructions inform the jury they should do exactly to the contrary by convicting the defendant of the highest offense proved beyond a reasonable doubt. Here, the defendant was tried and instructions were given on robbery, attempted robbery, grand theft, and petty theft. Defendant also requested instructions on aggravated assault and assault. Pursuant to binding precedent, this court reverses for the failure to instruct on assault. I am unable to understand how we can find reversible error under the “one step removed” rule when we do not tell the jury about it. I do not urge that juries should be instructed on jury pardons, but I frankly cannot justify their existence nor the finding of reversible error for failure to properly deal with them without also suggesting that juries should be told about the concept. In short, how can reversible error occur because the jury has only a limited ability to pardon the defendant when the jury is not told that they have that ability at all. I believe “jury pardons” should be re-examined. Were it not for the effect of binding precedent to the contrary, I would urge this court to do so.

ON PETITION FOR REHEARING

DOWNEY, Judge.

The State in its petition for rehearing points out that the trial court instructed the jury that it could find appellant guilty of petit theft, a second degree misdemeanor. The State goes on to argue that the giving of the petit theft instruction renders the trial court’s failure to give an assault instruction harmless error, since the court presented the jury with an opportunity to find appellant guilty of an offense having the same magnitude as assault.

Our January 28, 1981, opinion did not reflect that the trial court instructed the jury that it could find appellant guilty of petit theft, a second degree misdemean- or. However, the giving of the petit theft instruction does not render harmless the trial court’s refusal to give an assault instruction. While petit theft and assault are offenses of the same magnitude, both being second degree misdemeanors, they are unrelated offenses in that one can occur without the other, depending upon the circumstance of the crime. We adhere to our holding that the trial court acted prejudicially in refusing to give the requested instruction on assault despite the giving of the petit theft instruction, since assault is a lesser included offense of robbery. Although the trial court, by giving the petit theft instruction, afforded the jury one opportunity to invoke its inherent pardon power, the court; by refusing to give the requested instruction on assault, deprived the jury of another opportunity to invoke that power.

Petition for rehearing denied.

RUTTER, WILLIAM, Jr., Associate Judge, concurs.

BERANEK, J., concurs specially, with opinion.

BERANEK, Judge,

concurring specially on rehearing.

In view of the recent Supreme Court opinion in Reddick v. State, 394 So.2d 417 (Fla.1981), I am compelled to recede from my prior special concurrence criticizing jury pardons. 
      
      . State v. Abreau, 363 So.2d 1063 (Fla.1978).
     
      
      . See Reddick v. State, 380 So.2d 1330 (Fla. 5th DCA 1980). See also Keenan v. State, 379 So.2d 147 (Fla. 4th DCA 1980).
     