CHARLIE GRANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charlie Grant appeals his conviction for burglary of a dwelling with intent to commit theft, arguing the trial court failed to instruct the jury on the specific intent element to permanently deprive the owner of property. The First District Court of Appeal affirms, holding that when theft is an underlying crime in a burglary charge, the statutory language defining theft provides sufficient particularity to ensure a fair trial without separately emphasizing the intent-to-permanently-deprive element.
The trial court did not err. When an offense is an underlying crime to the primary charge (here, theft underlying burglary), the elements of the underlying felony need not be explained with the same particularity as if that offense were the primary crime charged. The true test is whether the underlying felony has been defined sufficiently to ensure the defendant a fair trial, and here the statutory language for theft met that standard.
[1] A jury instruction for burglary of a dwelling with intent to commit theft need not detail the specific intent elements of the underlying theft offense if the instruction…
[2] The elements of an underlying felony need not be explained with the same particularity as when that offense is the primary crime charged.
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Join FLexlaw to unlock all legal intelligence“The elements of the underlying felony . . . need not be explained with the same particularity that would be required if that offense were the primary crime charged. The true test is whether the underlying felony has been defined sufficiently to insure the defendant a fair trial.”
Establishes the legal standard for jury instructions on underlying crimes in compound offenses, requiring sufficiency but not identical particularity as primary charges.
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Join FLexlaw to unlock all legal intelligenceGrant was charged with burglary of a dwelling with intent to commit theft under Florida Statute § 810.02(3). At trial, the jury was instructed on the …
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PER CURIAM.
Grant appeals from his conviction, after a jury trial, of the crime of burglary of a dwelling with intent to commit a theft. § 810.02(3), Fla.Stat. (1980). He urges that the trial court erred when, in instructing the jury as to the elements of theft, it failed to make the requisite charge of intent to permanently deprive the owner of his property. We disagree.
In support of his argument Grant cites Baxley v. State, 411 So. 2d 194 (Fla. 5th DCA 1981), Faison v. State, 390 So. 2d 728 (Fla. 5th DCA 1980), and Hilty v. State, 386 So. 2d 1236 (Fla.2d DCA 1980). These cases, however, hold only that specific intent to permanently deprive an owner of property is an element of theft as defined in section 812.014, Florida Statutes (1981). Green v. State, 414 So. 2d 1171, 1172 (Fla. 5th DCA 1982). They do not mandate that specific intent to permanently deprive an owner must be charged when instructing as to burglary or any other crime with an underlying crime of theft.
We decline to extend the rationale of these cases to Grant’s situation. Rather, we find this appeal more appropriately governed by Taylor v. State, 386 So. 2d 825 (Fla.3d DCA 1980). In Taylor, the state sought to prove the charge of felony murder by proving that the victim’s death occurred during the felony of robbery. The defendant contended that the instruction was deficient because it failed to inform the jury that intent to permanently deprive another of property is an essential element of the charge of robbery. The Third District Court of Appeal rejected this argument, holding:
The elements of the underlying felony . . . need not be explained with the same particularity that would be required if that offense were the primary crime charged. The true test is whether the underlying felony has been defined sufficiently to insure the defendant a fair trial.
Id., at 829. There, the underlying robbery charged omitted any mention of specific intent and tracked the statutory language for robbery. Similarly, while the instruction in this case fails to charge intent to permanently deprive the victim of his property, the trial court’s instruction tracked the statutory language for theft, section 812.014(1):
Now, theft is defined as follows: That the defendant, Charles Grant, knowingly and lawfully used, obtained, or endeavored to obtain or endeavored to use the property of (the victim); And that he did so 'with the intent to deprive_ (the victim) of his right to the property or any benefit from it or to appropriate the property of (the victim) to his own use or to the use of any person not entitled to it. (Emphasis supplied).
We conclude that the underscored phrase charges the underlying crime of theft with sufficient particularity to insure the defendant a fair trial.
AFFIRMED.
McCORD, BOOTH and WENTWORTH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Frederick v. State, 424 So. 2d 150 (Fla. 5th DCA 1982)…State, 411 So. 2d 194 (Fla. 5th DCA 1981), which held that such intent is an element of theft. In the instant case, however, theft is the underlying crime, not the primary charge. Baxley has been distinguished by the recent case of Grant v. State, 420 So. 2d 903 (Fla. 1st DCA 1982), relying on the reasoning of the Third District Court of Appeal in Taylor v. State: The elements of the underlying felony ... need not be explained with the same particularity that would be required if that offense were the prim…
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Long v. State, 188 So. 3d 116 (Fla. 1st DCA 2016)…ically named offense at all. Toole, 472 So. 2d at 1175-76; Waters, 436 So. 2d at 68; Joseph, 965 So. 2d at 358; Perreault, 831 So. 2d at 786. It is likewise not necessary to define or instruct the jury on the elements of the offense. Grant v. State, 420 So. 2d 903, 903 (Fla. 1st DCA 1982) (relying on Taylor v. State, 386 So. 2d 825, 829 (Fla. 3d DCA 1980) (rejecting argument that court must instruct jury on each element of the subsumed offense)). As the court in Waters noted in the context of the charging do…
Authorities Cited
- Green v. State, 414 So. 2d 1171 (Fla. 5th DCA 1982)
- Taylor v. State, 386 So. 2d 825 (Fla. 3d DCA 1980)
- Burnice C. Baxley v. State, 411 So. 2d 194 (Fla. 5th DCA 1981)
- Faison v. State, 390 So. 2d 728 (Fla. 5th DCA 1980)
- Hilty v. State, 386 So. 2d 1236 (Fla. 2d DCA 1980)