RICHARD BERNARD FREDERICK AND JOHN L. INMAN, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Frederick and Inman appealed their burglary convictions arguing the trial court erred by refusing to instruct the jury on the specific intent to permanently deprive the owner of property as an element of the underlying theft charge. The court affirmed, holding that while theft was an underlying felony, the jury instruction on larceny adequately defined the crime with sufficient particularity to ensure a fair trial.
The trial court did not err. Although theft is an underlying felony in burglary, the elements of an underlying felony need not be explained with the same particularity as if that offense were the primary charge. The test is whether the underlying felony was defined sufficiently to ensure a fair trial, which it was here.
[1] When a theft is the underlying felony in a burglary charge, the elements of the theft need not be explained with the same particularity as if theft were the primary crime…
[2] A jury instruction defining larceny as "stealing" is sufficient when it is accompanied by a definition of theft that includes knowingly and unlawfully obtaining or using…
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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 controlling legal standard for jury instructions on underlying felonies in compound offenses like burglary
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Join FLexlaw to unlock all legal intelligenceRichard Bernard Frederick and John L. Inman were charged with burglary, with theft as the underlying felony. The trial court instructed the jury on th…
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COBB, Judge.
The appellants, Richard Bernard Frederick and John L. Inman, argue that the trial court erred by its refusal to instruct the jury, in regard to the burglary charge against them, as to the specific intent to permanently deprive the owner of the property. They rely on Baxley v. 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 primary crime charged. The true test is whether the underlying felony has been defined sufficiently to insure the defendant a fair trial.
Here, the trial judge defined the underlying offense of larceny as follows:
[Larceny] means, stealing. It’s called, in some of the statutes, theft, but everybody understands what the word stealing means.
They [Frederick and Inman] are charged with having the intent to steal. ... Now, what is theft? In Florida, theft or larceny is defined as knowingly and unlawfully obtaining or using or endeavoring to obtain or use, endeavoring to obtain or use the property of another and it must be done so with the intent to either deprive the victim of his right to the property or any benefit from it or to appropriate the property of the victim to the defendant’s own use or the use of any other person not entitled thereto.
There was no other objection to this charge and there is no challenge on appeal to the court’s instruction on the primary charge of burglary. Consequently, we find that the defendants, under these instructions, received a fair trial.
The remaining issue on appeal (the failure of the information to allege the owner’s non-consent to entry) is without merit in view of the recent Florida Supreme Court case of State v. Hicks, 421 So. 2d 510 (Fla.1982).
AFFIRMED.
ORFINGER, C.J., and DAUKSCH, J., concur. . 386 So. 2d 825, 829 (Fla. 3d DCA 1980).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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MacINTOSH v. State, 438 So. 2d 485 (Fla. 3d DCA 1983)…ed reversal of the defendant’s conviction). Appellant’s remaining issue on appeal, the failure of the information to allege the owner’s non-consent to entry, is without merit in view of State v. Hicks, 421 So. 2d 510 (Fla.1982); Frederick v. State, 424 So. 2d 150 (Fla. 5th DCA 1982). Affirmed. . Waters v. State, 401 So. 2d 1131 (Fla. 4th DCA 1981).…
Authorities Cited
- State v. Hicks, 421 So. 2d 510 (Fla. 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)
- Grant v. State, 420 So. 2d 903 (Fla. 1st DCA 1982)