JOHNNY HERBERT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnny Herbert appeals his conviction for burglary of a structure, arguing the trial court erred in instructing the jury on burglary of a dwelling when the information charged only burglary of a structure. The Florida First District Court of Appeal affirms the conviction, holding that a motel room qualifies as a dwelling under Florida law and the information adequately charged that offense.
The trial court did not err because the information adequately charged burglary of a dwelling; a motel room necessarily qualifies as a dwelling under Florida Statutes Section 810.011(2), and an information need not recite precise statutory language but only language of equivalent import. Even if error occurred, it could not have contributed to the conviction since Herbert was convicted of the lesser offense of burglary of a structure, not burglary of a dwelling.
[1] Alleged errors in jury charges relating to a higher offense should not be considered when the charge could not reasonably have contributed to the conviction of a lesser o…
[2] A jury instruction on a higher offense is permissible if the information adequately charged that offense, even if the defendant is convicted of a lesser offense.
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Join FLexlaw to unlock all legal intelligence“Generally, alleged errors in jury charges relating to a higher offense should not be considered when the charge could not reasonably have contributed to the conviction.”
Establishes the governing standard for reviewing jury instruction errors regarding uncharged offenses
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Join FLexlaw to unlock all legal intelligenceHerbert was charged with unlawfully entering or remaining in a motel room located at 1801 West Cervantes Street in Escambia County on August 22, 1982,…
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MILLS, Judge.
Herbert appeals his conviction for burglary of a structure. He contends the information alleged only burglary of a structure; therefore, the trial court erred in charging the jury on burglary of a dwelling. We affirm.
Generally, alleged errors in jury charges relating to a higher offense should not be considered when the charge could not reasonably have contributed to the conviction. Dixon v. State, 101 Fla. 840, 132 So. 684 (1931); Barton v. State, 72 Fla. 408, 73 So. 230 (1916). Herbert was convicted of the lesser offense of burglary of a structure. He was not convicted of burglary of a dwelling, the subject of the allegedly erroneous jury charge.
But, Herbert contends, the charge could have contributed to his conviction. He maintains that the jury exercised its pardon power in convicting of burglary of a structure and, had the jury not been given the option to convict of burglary of a dwelling, it would have exercised its pardon power and acquitted him. We are unconvinced.
It is not clear that the jury exercised its pardon power when it found Herbert guilty of burglary of a structure. Perhaps the jury considered him guilty of that charge. It is certainly not reasonable to further assume that Herbert would have been acquitted if the trial court had not instructed the jury on a crime for which he was not convicted. In any event, the trial court could instruct the jury on burglary of a dwelling because the information alleged that offense.
A document charging a statutory offense does not have to recite the precise language of the statute, but must be clear as to the offense charged. Language of equivalent import will suffice. Gibbs v. Mayo, 81 So. 2d 739 (Fla.1955).
Count I of the information charged:
CURTIS A. GOLDEN, State Attorney for the First Circuit of Florida, prosecuting for the STATE OF FLORIDA, charges that JOHNNY LEE HERBERT, on August 22, 1982, at and in Escambia County, Florida, did unlawfully enter or remain in a structure, to-wit: a motel room, located at 1801 West Cervantes Street, in the County and State aforesaid, the property of Dondeaio Hosea as owner or custodian thereof, with the intent to commit an offense therein, to-wit: Theft, in violation of Sections 810.02(1) and 810.-02(3), Florida Statutes.
Section 810.011(2), Florida Statutes (Supp.1982), defines “dwelling”:
“Dwelling” means a building or conveyance of any kind, either temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.
The information adequately charged burglary of a dwelling because a motel room is necessarily a dwelling within the meaning of Section 810.011(2), Florida Statutes (Supp.1982).
AFFIRMED.
SHIVERS and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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State v. Bennett, 565 So. 2d 803 (Fla. 2d DCA 1990)…remand for further proceedings consistent with this opinion. Reversed. SCHEB, A.C.J., and CAMPBELL and PATTERSON, JJ., concur. . We find only two post-amendment cases debating what sort of structure may constitute a "dwelling." Herbert v. State, 439 So. 2d 971 (Fla. 1st DCA 1983), held that a motel room is a “dwelling" by virtue of section 810.011(2) as amended. On the other hand, in P.P.M. v. State, 447 So. 2d 445 (Fla. 2d DCA 1984), we held that a vacant house was not a dwelling for purposes of the arso…
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L.C. & C.F. v. State, 579 So. 2d 783 (Fla. 3d DCA 1991)…evertheless, the appellants’ adjudications on the count of burglary of a dwelling must be affirmed because, under the common-law definition, the house burglarized in this case would still meet the definition of a dwelling. See e.g. Herbert v. State, 439 So. 2d 971 (Fla. 1st DCA 1983) (motel room is a “dwelling” within meaning of section 810.011(2), without regard for whether it has been rented out at the time of the offense). A house which otherwise is a dwelling under common law does not lose that character…
Authorities Cited
- Dixon v. State, 132 So. 684 (Fla. 1931)
- Nesby Lawrence Gibbs v. Mayo, 81 So. 2d 739 (Fla. 1955)
- Spanish v. State, 72 Fla. 420 (Fla. 1916)
- Barton v. State, 72 Fla. 408 (Fla. 1916)