CHARLES T. MACEK, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant was charged and convicted of attempted burglary. He raises three points on appeal, one of which is dispositive. At trial, appellant requested a jury instruction on the lesser included offense of trespass. The trial court denied this request and instructed the jury on attempted burglary only. We reverse. The information charged the appellant with the attempted burglary of a private residence. We believe the offense of trespass was comprehended by the allegations of the information and supported by the evidence adduced at trial. Thus, we hold that trespass was a Category Four lesser included offense under Brown v. State, 206 So. 2d 377 (Fla.1968), and the trial court erred in denying appellant’s requested jury instruction.
REVERSED AND REMANDED FOR A NEW TRIAL.
BERANEK, HERSEY and DELL, JJ., concur.
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Jenkins v. State, 547 So. 2d 1017 (Fla. 1st DCA 1989)…act, under the previous standards established in Brown v. State, 206 So. 2d 377 (Fla.1968),6 caselaw has treated trespass as a “category four” lesser included offense of burglary. See B.D. v. State, 412 So. 2d 70 (Fla. 1st DCA 1982); Macek v. State, 409 So. 2d 107 (Fla. 4th DCA 1982); Mobley. In light of the above authority and the fact that the burglary and trespass statutes have remained unchanged since 1985, we conclude that trespass is not a necessarily included offense of burglary. Under rule 3.510(b), i…
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Bland v. State, 563 So. 2d 794 (Fla. 1st DCA 1990)…ffense is contemplated by the allegations of the information and supported by the evidence presented at trial, the law is clear that the instruction should be given, if timely requested. See Brown v. State, 206 So. 2d 377 (Fla.1968); Macek v. State, 409 So. 2d 107 (Fla. 4th DCA 1982). The evidence adduced at the trial below would appear to support a trespass instruction, i.e., appellant’s statement to the arresting officer that the victim allowed him to enter and that he refused to depart. Because there was…
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- Brown v. State, 206 So. 2d 377 (Fla. 1968)