JIMMIE LEE TUCKER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The defendant-appellant’s primary contention is that he was improperly sentenced to life imprisonment for burglary under Section 810.02(2), Fla.Stat. (1979) upon a jury verdict finding him guilty of “burglary of a structure.” Count I of the information filed against Tucker was denominated as charging only “burglary of a structure.” It specifically alleged, however, that, within the burglarized building, the defendant was armed or armed himself with a dangerous weapon, a knife. Such a charge is an “aggravating factor” which justifies a life sentence for burglary under Section 810.-02(2)(b).
Without objection, the jury was repeatedly instructed by the court — and was informed by counsel in final argument — that if it found that Tucker was indeed armed, it should return the verdict form which read: “as to Count One of the Information: Burglary of a Structure, Guilty.” If it did not so find, it was to employ the form which found him guilty of “Burglary, a lesser included offense.” Under these circumstances, the return of the former verdict form and the rejection of the latter clearly and unmistakably evinced the jury’s determination that the defendant was guilty of burglary committed while he was armed with a dangerous weapon, as charged in count one. We thus find no error in the imposition of sentence accordingly. Yarborough v. State, 94 Fla. 143, 114 So. 237 (1927); Hambrick v. State, 80 Fla. 672, 86 So. 623 (1920); Coon v. State, 353 So. 2d 1240 (Fla.3d DCA 1978).
Since the appellant’s remaining points, which challenge the sufficiency of the evidence against him are patently without merit, see Section 810.02(1), Fla.Stat. (1979), the judgment under review, in its entirety, is
Affirmed.
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Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)…context of the issues presented by both sides below, that the judgment under review properly reflects the intent and finding of the jury. Cotton v. State, 395 So. 2d 1287, 1290 (Fla. 1st DCA 1981); Simpkin v. State, supra; see also, Tucker v. State, 388 So. 2d 6 (Fla. 3d DCA 1980), review denied, 392 So. 2d 1380 (Fla.1981); McIntyre v. State, 380 So. 2d 1064 (Fla. 2d DCA 1980). The claim of error in the prosecutor’s final argument is also without substance. White v. State, 377 So. 2d 1149 (Fla.1979), cert.…
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Damon v. State, 397 So. 2d 1224 (Fla. 3d DCA 1981)…in Count II required a finding of an assault during the burglary. Since this crime carries a possible life sentence under Section 810.02(2)(a), the crime of which the jury found the defendants guilty is indeed a lesser offense. See, Tucker v. State, 388 So. 2d 6 (Fla.3d DCA 1980). . Assuming the difference is anything more than semantic, we find no reason in this case to choose between these two theoretical bases of decision. . His conviction of third-degree murder can only be ascribed either to a misunde…
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Easton v. State, 472 So. 2d 1369 (Fla. 3d DCA 1985)…s cited (sentence condition precluding gain time improper). Since the defendant’s remaining points present no error, see Spinkellink v. State, 313 So. 2d 666 (Fla.1975); Damon v. State, 397 So. 2d 1224, 1225 n.3 (Fla. 3d DCA 1981); Tucker v. State, 388 So. 2d 6 (Fla. 3d DCA 1980), pet. for review denied, 392 So. 2d 1380 (Fla.1981), the judgments under review are otherwise affirmed. Affirmed as modified. . In its entirety, the subsection states as follows: 948.01 When court may place defendant on probatio…
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- Hambrick v. State, 80 Fla. 672 (Fla. 1920)
- Yarborough v. State, 94 Fla. 143 (Fla. 1927)
- Thompson v. State, 353 So. 2d 1240 (Fla. 3d DCA 1978)