RICHARD WILLIAMS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Williams appeals his convictions for burglary of a conveyance and petit theft. The court affirmed his petit theft conviction and sentence, holding that a prior conviction obtained after the criminal acts but before sentencing could properly aggravate the sentence, but reversed his burglary conviction because the trial court failed to give a requested jury instruction on trespass as a necessarily lesser included offense.
The court held that the respective dates when thefts occurred are not controlling; a conviction obtained for a later theft before sentencing in the case can properly aggravate the petit theft sentence. However, the court held that trespass is a necessarily lesser included offense of burglary, and failure to give such an instruction is reversible error that cannot be deemed harmless.
[1] A prior conviction can be used to aggravate a petit theft sentence even if the criminal acts for the prior conviction occurred after the criminal acts for the current off…
[2] Trespass to a conveyance is a necessarily lesser included offense of burglary of a conveyance.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We do not think the respective dates when the thefts occurred are controlling in this context, so long as a conviction was obtained for the later theft before sentencing in this case.”
Establishes that for petit theft sentencing enhancement, the timing of when the criminal acts occurred is not controlling; only that a conviction was obtained before sentencing in the current case.
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Join FLexlaw to unlock all legal intelligenceWilliams committed theft on May 21, 1983. He had a prior petit theft conviction from December 27, 1982. A second petit theft conviction was obtained o…
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SHARP, Judge.
Williams appeals from convictions and sentences for burglary of a conveyance,1 and petit theft.2 He argues that his petit theft conviction should not have been aggravated pursuant to section 812.014(2)(c), Florida Statutes (1983)3 by a conviction obtained prior to sentencing in this case because the criminal acts took place .after those involved in this case. He also argues that the trial court erred in refusing to give a requested instruction on trespass to a conveyance.4
We think the trial judge properly aggravated Williams’ petit theft sentence under section 812.014(2)(c).5 Williams committed the theft involved in-this case on May 21, 1983. He had been convicted of petit theft on December 27, 1982, which he agrees was properly considered. However, the second “prior” petit theft conviction was obtained on September 21, 1983, for criminal acts Williams performed after those involved in this case. We do not think the respective dates when the thefts occurred are controlling in this context,6 so long as a conviction was obtained for the later theft before sentencing in this case. See Daugherty v. State, 419 So. 2d 1067 (Fla.1982); Ruffin v. State, 397 So. 2d 277 (Fla.1981). Therefore, we affirm his conviction and sentence for petit theft.
However, Williams’ second point on appeal mandates reversal. The defense requested the giving of an instruction on trespass as a necessarily lesser included offense of burglary of a conveyance. Trespass is a necessarily included offense of burglary.7 As it is but one step removed from the burglary offense, failure to give it is reversible error. State v. Abreau, 363 So. 2d 1063 (Fla.1978); Brown v. State, 206 So. 2d 377 (Fla.1968); Foster v. State, 448 So. 2d 1239 (Fla. 5th DCA 1984). The rationale is apparently to preserve the jury’s inherent pardon power, and therefore the harmless error rule does not apply. State v. Bruns, 429 So. 2d 307 (Fla.1983). Consequently, we have no choice in this case but to reverse Williams’ conviction for burglary-and remand for a new trial.
AFFIRMED IN PART; REVERSED IN PART.
ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur. . §§ 810.02(1); 810.02(3) & 810.07, Fla.Stat. (1983).
. § 812.014(l)(a)(b), Fla.Stat. (1983).
. Section 812.014(2)(c) provides:
Theft of any property not specified in paragraph (a) or paragraph (b) is petit theft and a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Upon a second conviction for petit theft, the offender shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. Upon a third or subsequent conviction for petit theft, the offender shall be guilty of a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084.
. § 810.08, Fla.Stat. (1983).
. Williams does not contest that a prior petit theft conviction obtained on December 27, 1982 was properly used to aggravate the sentence.
. We do not think that Snowden v. State, 449 So. 2d 332 (Fla. 5th DCA 1984) and Shead v. State, 367 So. 2d 264 (Fla. 3rd DCA 1979), are on point because those cases involved interpretations of the habitual offender statute. § 775.-084, Fla.Stat. (1983). The language of that statute makes the timing of the commission of a criminal act, as well as the date of conviction for it, significant factors. Section 812.014 simply speaks in terms of prior convictions.
. Macek v. State, 409 So. 2d 107 (Fla. 4th DCA 1982); R.R. v. State, 397 So. 2d 1051 (Fla. 4th DCA 1981). In the present Schedule of Lesser Included Offenses attached to the Florida Standard Jury Instructions trespass is a Category I or necessarily lesser included offense of burglary. Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Florida Standard Jury Instructions in Criminal Cases (1981 ed.) at 264.
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Citator
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G.C. v. State, 560 So. 2d 1186 (Fla. 3d DCA 1990)…t in the Florida statutory scheme through the assignment of a misdemeanor penalty to a trespasser, and a felony penalty to those who accomplish the theft or otherwise exercise dominion and control over the vehicle. . According to Williams v. State, 461 So. 2d 1010 (Fla. 5th DCA 1984), the 1981 version of the Standard Jury Instructions classified trespass as a category one lesser included offense of burglary. Id. at 1011 n. 7; see also In the Interest of R.R., 397 So. 2d 1051 (Fla. 4th DCA 1981). In 1987 the c…
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Jenkins v. State, 547 So. 2d 1017 (Fla. 1st DCA 1989)…Neither requirement is satisfied in this case. Thus, this exception to the hearsay rule does not apply. . The trial court gave the standard jury instructions on burglary, trespass in an occupied structure and battery. . But see, Williams v. State, 461 So. 2d 1010 (Fla. 5th DCA 1984), in which the court held that trespass was a necessarily included offense of burglary, relying on the former schedule of lesser included offenses. . Florida Standard Jury Instructions in Criminal Cases (2d Ed., Supp. May, 1987)…
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Pulaski v. State, 540 So. 2d 193 (Fla. 2d DCA 1989)…igher in the event he commits the same crime again. The statutes, however, do not speak in terms of a defendant having been previously convicted of the offense in question, only of “second” and “third” convictions and so forth. In Williams v. State, 461 So. 2d 1010 (Fla. 5th DCA 1984), the petit thefts relied upon for aggravation actually occurred after the petit theft which had been charged as a felony. On appeal the court drew a distinction between the theft statute and the habitual offender statute, section…
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 (11 total)
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Ruffin v. State, 397 So. 2d 277 (Fla. 1981)
- State v. Bruns, 429 So. 2d 307 (Fla. 1983)
- Shead v. State, 367 So. 2d 264 (Fla. 3d DCA 1979)
- Snowden v. State, 449 So. 2d 332 (Fla. 5th DCA 1984)
- Daugherty v. State, 419 So. 2d 1067 (Fla. 1982)
- Foster v. State, 448 So. 2d 1239 (Fla. 5th DCA 1984)
- 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)