MITCHELL ALAN KANE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mitchell Kane was convicted of trespass of an occupied structure, a lesser included offense of burglary, after the trial court proceeded despite an information that failed to specify the particular offense Kane allegedly intended to commit. The appellate court affirmed, holding that while the information was defective, the defect was not fundamental and therefore waived by Kane's failure to object before trial.
The court held that while the information was defective in failing to specify the particular offense intended, the defect was not fundamental or fatal. The defect was waived by Kane's failure to timely object to the information, as Rule 3.190(c) requires objections to information defects to be raised before trial. The trial court therefore had jurisdiction and the conviction was proper.
[1] An information charging burglary must specify the particular offense the defendant intended to commit, rather than generally alleging an intent to commit "an offense."
[2] Failure to timely object to a deficient information that imprecisely or incompletely alleges an essential element of a crime constitutes a waiver of the defect.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In charging an entering with intent to commit an offense, the intent cannot be laid in mere general words, that is, it is not sufficient to say that the defendant entered with intent to commit an offense. The kind of offense must be specified, although the specification need not be as minute as would be necessary in an indictment for the commission of that offense.”
Establishes the rule that burglary charges must specify the particular offense intended, not just allege intent generally.
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Join FLexlaw to unlock all legal intelligenceKane was charged with burglary of a structure under Florida Statute 810.01(3). The information alleged he entered or remained in a dwelling with inten…
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ORFINGER, Judge.
Appellant was convicted of the lesser included offense of trespass of an occupied structure after a jury trial on a charge of burglary of a structure.1 He appeals, contending that the trial court had no jurisdiction to try him because of an insufficient information. We affirm.
The information filed against appellant alleged that he:
did, in violation of Florida Statute 810.-01(3), enter or remain in a certain structure, to-wit: a dwelling, ... the property of Pamela Ann Gee or Stephanie Lee Trippleton, as owner(s) or custodian(s) thereof, with the intent to commit an offense therein, (emphasis ours).
Since criminal intent is an essential element of the crime of burglary, it is necessary to allege such intent. The rule is well established, however, that it is not sufficient to aver generally an intent to commit “an offense”; rather, the particular offense must be specified. Charles v. State, 36 Fla. 691, 18 So. 369 (1895); 13 Am.Jur.2d, Burglary, § 36, p. 341.
In charging an entering with intent to commit an offense, the intent cannot be laid in mere general words, that is, it is not sufficient to say that the defendant entered with intent to commit an offense. The kind of offense must be specified, although the specification need not be as minute as would be necessary in an indictment for the commission of that offense.
16 Fla.Jur.2d, Crim.Law, § 1338 (1979). Therefore, the information against appellant is clearly deficient, and should have been dismissed upon motion.
Appellant, however, did not object to the information in the court below. Thus, any objection to the information is waived, unless the defect is fundamental. Rule 3.190(c), Fla.R.Crim.P.; Caves v. State, 302 So. 2d 171 (Fla. 2d DCA 1974), cert. denied 314 So. 2d 585 (1975); Catanese v. State, 251 So. 2d 572 (Fla. 4th DCA 1971).
Although there is no disagreement among courts of other jurisdictions as to the need to specify the offense in order to properly charge intent, there is disagreement on the effect of a deficient charge. Some courts hold that the deficiency is fundamental, creating a jurisdictional void,2 even in the absence of a motion to dismiss the information or to otherwise object to it. Others hold that the omission to specify the particular offense intended to be committed is a defect in form and is not fundamental.3
We choose to follow the latter view and agree with the decision of our sister court in State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980), where, in a similar situation involving the same statute, Judge Hurley, speaking for the court pointed out that there is a significant distinction between an indictment or information which completely omits an essential element of an offense and one which imprecisely or incompletely alleges an essential element of a crime. In the former situation, the total omission is fatal. State v. Dye, 346 So. 2d 538, 541 (Fla.1977). In the latter category, however, an imperfect allegation, unless timely challenged by a motion to dismiss, shall be deemed to have been waived. Rule 3.190(c), Fla.R.Crim.P. As did the court in Fields, we agree that the information was defective, but not fatally so. The judgment of conviction is therefore
AFFIRMED.
COBB and COWART, JJ., concur. . § 810.02(1), Fla.Stat. (1979):
“Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
. See, e. g., U. S. v. Thomas, 444 F. 2d 919 (D.C.Cir.1971).
. See, e. g., State v. Lora, 213 Kan. 184, 515 P. 2d 1086, 1090 (1973).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981)…consent of the owner or occupant. By either mode of pleading, the defendant would be sufficiently notified in the accusatory pleading of the crime brought by the state to which he must respond, (emphasis added) 390 So. 2d at 131. In Kane v. State, 392 So. 2d 1012 (Fla. 5th DCA 1981), this court followed Fields in holding that a burglary information alleging only that the accused entered or remained in a certain dwelling with the intent to commit an offense therein (without specifying the particular offense)…
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Green v. State, 414 So. 2d 1171 (Fla. 5th DCA 1982)…ismiss or the defect is deemed harmless. Even if attacked by a motion to dismiss, denial of the motion may be harmless error if the defendant can show no prejudice in his defense. See Gray v. State, 404 So. 2d 388 (Fla. 5th DCA 1981); Kane v. State, 392 So. 2d 1012 (Fla. 5th DCA 1981); State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980). The information in this case charging that the appellant did “steal,” imperfectly alleges all of the elements of the offense of larceny, including the element of intention, w…
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Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015)…53 (Fla. 5th DCA 1982))); Brewer v. State, 413 So. 2d 1217, 1221 (Fla. 5th DCA 1982) (en banc) (finding no fundamental error where the deficiency of the charging document was not a total omission of an essential element of the crime); Kane v. State, 392 So. 2d 1012, 1013 (Fla. 5th DCA 1981) (same); State v. Cadieu, 353 So. 2d 150, 151 (Fla. 1st DCA 1977) (“The law does not favor a strategy of withholding attack on the information until the defendant is in jeopardy, then moving to bar the prosecution entirely.”…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DYE, 346 So. 2d 538 (Fla. 1977)
- Catanese v. State, 251 So. 2d 572 (Fla. 4th DCA 1971)
- Wiley Charles v. State, 36 Fla. 691 (Fla. 1895)
- United States v. Thomas, 444 F.2d 919 (D.C. Cir. 1971)
- Caves v. State, 302 So. 2d 171 (Fla. 2d DCA 1974)
- State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980)
- Thompson v. Thompson, 390 So. 2d 128 (Fla. 4th DCA 1980)
- Caves v. State, 314 So. 2d 585 (Fla. 1975)
- Stoddard Pickrell v. State, 314 So. 2d 585 (Fla. 1975)