WILLIAM MATTHEW PAULK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Paulk appeals his conviction for burglary, arguing the jury instruction on his extra-judicial statement was reversible error. The court reverses the conviction because it does not conform to the jury verdict (jury found him guilty of attempted burglary, not burglary), but affirms on other grounds including the jury instruction.
The judgment of conviction must be reversed and remanded because it does not conform to the jury verdict (jury found attempted burglary, not burglary). However, the defendant's challenge to the jury instruction is rejected and affirmed because the instruction was required under law and any technical error did not injuriously affect his substantial rights given the overwhelming evidence of guilt.
[1] A judgment of conviction must conform to the jury's verdict.
[2] A conviction for burglary of a structure cannot stand when the jury returned a verdict of attempted burglary of a structure.
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Join FLexlaw to unlock all legal intelligence“The defendant was adjudicated guilty of burglary of a structure upon a jury verdict which found him guilty of attempted burglary of a structure.”
Establishes the fundamental error that the judgment does not conform to the verdict
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Join FLexlaw to unlock all legal intelligencePaulk was tried for burglary of a structure. He made an extra-judicial statement to police that was largely incriminating and all but constituted a co…
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HUBBART, Judge.
The defendant William Matthew Paulk appeals á judgment of conviction and sentence entered against him in the Circuit Court for the Eleventh Judicial Circuit of Florida. We reverse the judgment of conviction and remand the cause to the trial court with directions to conform the judgment of conviction to the jury verdict returned in this cause. The defendant was adjudicated guilty of burglary of a structure upon a jury verdict which found him guilty of attempted burglary of a structure. As such, the judgment of conviction does not conform to the jury verdict and must, upon remand, be amended to so conform. Perkins v. Mayo, 92 So. 2d 641 (Fla. 1957); Lewis v. State, 154 Fla. 825, 19 So. 2d 199 (1944); Holloman v. State, 140 Fla. 59, 191 So. 36 (1939).
In all other respects, the judgment of conviction and sentence appealed from is affirmed. In particular, we reject the defendant’s contention that the complained of jury instruction [Fla.Stat.Jury Instr. (Crim.) 2.13(i)] given by the trial court in this cause constituted reversible error. In our view, the jury instruction was required under the law because the defendant’s extra-judicial statement to the police in evidence was an incriminating statement which all but confessed to the crime for which the defendant was charged. Bunn v. State, 363 So. 2d 16 (Fla.3d DCA 1978).
Even if the statement could be construed as partially exonerating, it was so marginally exonerating and so largely incriminating, plus the evidence of guilt in this record was so overwhelming, that the technical error, if any, in giving the above jury instruction in no sense contributed to the instant conviction and, therefore, could not have “injuriously affected the substantial rights of the appellant.” § 924.33, Fla.Stat. (1977).
We are, accordingly, compelled to affirm.
Affirmed in part; reversed in part.
SCHWARTZ, Judge
(concurring specially)-
I concur in the conclusion that the lower court’s action in granting the charge which is challenged on this appeal, Fla.Stat.Jury Instr. (Crim.) 2.13(i), does not require reversal, but do so only on the ground that, under the circumstances of this case and considering the totality of the instructions to the jury, no harmful error has been demonstrated. Sec. 924.33, Fla.Stat. (1977).
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Murrell Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982)…axiomatic that a verdict which does not find everything that is necessary to enable the court to render judgment cannot support the judgment, Perkins v. Mayo, 92 So. 2d 641 (Fla.1957); Harris v. State, 53 Fla. 37, 43 So. 311 (1907); Paulk v. State, 376 So. 2d 1213 (Fla. 3d DCA 1979). Because each count or charge in an information or indictment is considered as if it were a separate information or indictment, Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), a verdict on one count is not…
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Mellins v. State, 395 So. 2d 1207 (Fla. 4th DCA 1981)…ent and intoxication.” Therefore, the jury had an opportunity to consider the effect of intoxication in this context so that the failure to instruct could not have “injuriously affected the substantial rights of the appellant” citing Paulk v. State, 376 So. 2d 1213, 1214 (Fla. 3d DCA 1979). There were no scientific tests made to determine whether appellant was intoxicated at the time of the alleged offense. There could therefore be no empirical evidence of intoxication. The only evidence on this issue was the…
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Potter v. State, 472 So. 2d 776 (Fla. 1st DCA 1985)…PER CURIAM. We remánd the judgment of conviction so that it can be amended to conform to the jury verdict, finding appellant guilty of attempted burglary. Paulk v. State, 376 So. 2d 1213 (Fla. 3d DCA 1979). We otherwise affirm the judgment of conviction and sentence. BOOTH, WIGGINTON and BARFIELD, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Perkins v. Mayo, 92 So. 2d 641 (Fla. 1957)
- Lewis v. State, 154 Fla. 825 (Fla. 1944)
- Holloman v. State, 140 Fla. 59 (Fla. 1939)
- Bunn v. State, 363 So. 2d 16 (Fla. 3d DCA 1978)