FLOZELL BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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COBB, Judge.
Appellant was charged with burglary of a dwelling in violation of Section 810.02(3), Florida Statutes (1977). At the jury instruction conference, appellant’s attorney requested an instruction on both first degree misdemeanor trespass and second degree misdemeanor trespass. The trial court refused to instruct on second degree misdemeanor trespass. The jury found appellant guilty of first degree misdemeanor trespass. Appellant contends that the trial court erred in refusing to instruct the jury on second degree misdemeanor trespass. We agree. Second degree misdemeanor trespass is a lesser included offense; therefore, the trial court should have given the requested instruction. Brown v. State, 206 So. 2d 377 (Fla.1968).
Since the offense that the judge did not instruct on was not two or more steps from the offense that appellant was convicted of, the failure to give the requested instruction was not harmless error. Delaine v. State, 262 So. 2d 655 (Fla.1972); State v. Abreau, 363 So. 2d 1063 (Fla.1978).
REVERSED and REMANDED for new trial.
ORFINGER and SHARP, JJ., concur.
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Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980)…au, supra, requires of an appellate court to find error harmful per se where the omitted instruction is for the degree of the offense immediately lesser than the degree of conviction3. This [*662] application was properly applied in Butler v. State, 379 So. 2d 715 (Fla.5th DCA 1980). Therefore, we REVERSE and REMAND for a new trial. HERSEY, J., and WETHERINGTON, GERALD T., Associate Judge, concur. .Florida Rule of Criminal Procedure 3.490 provides: If the indictment or information charges an offense which…1 / 2
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Piantadosi v. State, 399 So. 2d 382 (Fla. 3d DCA 1981)…for which the defendant was convicted. It was thus per se reversible error to refuse to give the instruction requested by Piantadosi. Reddick v. State, 394 So. 2d 417 (Fla.1981); Hunter v. State, 389 So. 2d 661 (Fla. 4th DCA 1980); Butler v. State, 379 So. 2d 715 (Fla. 5th DCA 1980).4 Compare State v. Abreau, 363 So. 2d 1063 (Fla.1978). See also Williams v. State, 399 So. 2d 999, 1003 n.10 (Fla.3d DCA 1981). We are compelled [*385] to reverse the defendant’s conviction and remand for a new trial. . Generall…
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Brindley Marshall v. State, 529 So. 2d 797 (Fla. 3d DCA 1988)…363 So. 2d 1063 (Fla. 1978), held that it is reversible error per se when the jury is not instructed on the next immediate lesser offense from the offense charged if they return a verdict for the offense charged. We believe, as did Butler v. State, 379 So. 2d 715 (Fla. 5th DCA 1980), that the logical extension of Abreau is that it is also reversible error per se when the jury is not instructed on the next immediate lesser offense than the offense of conviction.” Hunter v. State, 389 So. 2d at 661 n. 3 (empha…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- DeLAINE v. State, 262 So. 2d 655 (Fla. 1972)