B. D., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that trespass of an occupied structure is a lesser included offense of burglary, and the evidence supported a conviction for trespass even if burglary was not proven.
[1] Evidence insufficient to prove burglary does not preclude adjudication for trespass of an occupied structure when the evidence establishes commission of the latter offens…
[2] Trespass of an occupied structure is a category four lesser included offense of burglary.
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Join FLexlaw to unlock all legal intelligenceAppellant was adjudicated delinquent based on a petition charging burglary. The evidence was insufficient to prove burglary, but the court found it su…
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LARRY G. SMITH, Judge.
We affirm appellant’s adjudication for delinquency. Although we agree that the evidence was insufficient to prove the crime of burglary, there being no evidence upon which to base a finding of intent to commit the offense of theft, as specifically charged in the petition,1 the evidence did establish commission of the offense of trespass of an occupied structure, a misdemeanor of the first degree. Conviction of this offense would be sufficient upon which to base an adjudication of delinquency.2 We reject appellant’s argument that the offense of trespass is not a lesser included offense of the charge of burglary. We hold, as did the Fourth District in Macek v. State, 409 So. 2d 107 (Fla. 4th DCA 1982), that the offense of trespass is a “category four” lesser included offense under Brown v. State, 206 So. 2d 377 (Fla.1968). Because our ruling does not require that we determine whether an allegation of stealth and lack of consent of the owner pursuant to Section 810.07, Florida Statutes, is a sufficient substitute for an allegation of intent to commit a specific offense in charging a burglary, we have no occasion to choose between the allegedly conflicting opinions on this point found in Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981), and State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980), or to certify the alleged conflict as the state has requested we do.
Under Section 39.11(3), Florida Statutes, the maximum term of commitment cannot exceed the term of imprisonment of an adult convicted of the same offense. The offense of trespass of an occupied structure is punishable by up to one year of imprisonment in the county jail. Sections 810.-08(2)(b) and 775.082, Florida Statutes. Therefore, upon remand, the order of commitment shall be amended accordingly.
AFFIRMED in part, REVERSED in part, and REMANDED.
MILLS and SHAW, JJ., concur. . Krathy v. State, 406 So. 2d 53 (Fla. 1st DCA 1981); Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981); and Waters v. State, 401 So. 2d 1131 (Fla. 4th DCA 1981).
. Section 39.01(8).
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G.C. v. State, 560 So. 2d 1186 (Fla. 3d DCA 1990)…lly enters or remains in any ... conveyance ....”3 Based on the allegations of the petition, and the proof at trial, the violation of section 810.08 is a lesser included offense of the burglary with which G.C. [*1189] was charged. See B.D. v. State, 412 So. 2d 70, 70-71 (Fla. 1st DCA 1982) (trespass as lesser included offense of burglary); J.B. v. State, 405 So. 2d 247, 248 (Fla. 3d DCA 1981) (attempted trespass, burglary). See generally Fla.Std. Jury Instr. (Crim.) p. 283 (1981 ed.); Brown v. State, 206 So.…1 / 2
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Jenkins v. State, 547 So. 2d 1017 (Fla. 1st DCA 1989)…ded offenses of the various burglary offenses. In fact, 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…
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M.F. v. State, 562 So. 2d 724 (Fla. 3d DCA 1990)…DCA 1989). However, the evidence establishes that M.F. committed the lesser included offense of trespass to a conveyance in violation of section 810.08, Florida Statutes (1987). G.C. v. State, 560 So. 2d 1186 (Fla. 3d DCA 1990); see B.D. v. State, 412 So. 2d 70 (Fla. 1st DCA, 1982); J.B. v. State, 405 So. 2d 247 (Fla. 3d DCA 1981). Accordingly, the finding of delinquency is affirmed as modified. See B.D. v. State. Affirmed. . We need not question the propriety of reducing a charge to an offense which is…
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
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981)
- State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980)
- Thompson v. Thompson, 390 So. 2d 128 (Fla. 4th DCA 1980)
- Waters v. State, 401 So. 2d 1131 (Fla. 4th DCA 1981)
- Krathy v. State, 406 So. 2d 53 (Fla. 1st DCA 1981)
- MacEk v. State, 409 So. 2d 107 (Fla. 4th DCA 1982)
- Clemente DiMURO v. Dave's Tile Serv., Inc., 409 So. 2d 107 (Fla. 1st DCA 1982)