MARK L. OLIVERIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's first-degree burglary conviction was reversed because the information failed to state the elements of assault as an alleged aggravating element, but the evidence supported a second-degree burglary conviction to which he was remanded for resentencing.
When assault is charged as an aggravating element in a burglary information, the elements of assault must be stated in the information.
[1] When assault is charged as an aggravating element in a burglary information, the elements of the assault must be stated in the charging document.
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Join FLexlaw to unlock all legal intelligenceDefendant was charged with first-degree burglary, with the information alleging that an assault was committed in the course of the burglary. The infor…
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PER CURIAM.
Defendant appeals his conviction and sentence on the charge of first degree burglary. The information charged that in the course of the burglary, defendant committed an assault. Prior to trial, defendant moved to dismiss the information because the elements of the assault were not stated. At trial, defendant moved for a directed judgment of acquittal as to the assault asserting there was insufficient proof of this crime which was alleged as an aggravating element. In accordance with Lindsey v. State, 416 So. 2d 471 (Fla. 4th DCA 1982), we conclude that the trial court erred in failing to dismiss the information. The elements of an assault must be stated when this crime is charged as an aggravating element in a burglary information. As held in Lindsey, supra, such an omission is not fundamental error but here the point was raised prior to trial and even on appeal it is not precisely certain what facts were relied on at trial as constituting the alleged but ill-defined assault. The proof does support the lesser crime of second degree burglary and the case is remanded to the trial court with directions to adjudicate defendant guilty of second degree burglary and to resentence him accordingly.
REVERSED AND REMANDED.
BERANEK, J., OWEN, WILLIAM C., Jr., Associate Judge (Retired), and GREEN, OLIVER L., Jr., Associate Judge, concur.
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Citator
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State v. Oliveria, 446 So. 2d 1077 (Fla. 1984)…BOYD, Justice. We have for review a decision of a district court of appeal, Oliveria v. State, 417 So. 2d 1004 (Fla. 4th DCA 1982). The state seeks review on the ground of conflict of decisions. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The principal issue in this case is whether an information charging burglary during which an assault was commi…
Authorities Cited
- Lindsey v. State, 416 So. 2d 471 (Fla. 4th DCA 1982)