DENNIS DUANE ZETTLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dennis Duane Zettle was convicted of attempted second degree murder and first degree burglary with a battery. The appellate court affirmed the attempted second degree murder conviction but reversed the first degree burglary conviction because the charging information failed to allege the necessary elements for a first degree offense, and remanded for entry of a second degree burglary conviction.
The court reversed the first degree burglary conviction because the information failed to allege that Zettle was armed or that he armed himself while in the structure, which are necessary elements for first degree burglary. The court reversed the judgment on attempted second degree murder to correct the classification from first degree felony to second degree felony, though affirming the sentence.
[1] A conviction for first-degree burglary requires the charging instrument to allege the elements necessary for that specific offense, not merely borrow them from other coun…
[2] A conviction for first-degree burglary cannot stand if the charging instrument fails to allege that the defendant committed a battery, was armed, or armed himself while i…
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“For Zettle to have been convicted of first degree burglary under Section § 810.02(2), Florida Statutes (1987), the information necessarily had to allege that appellant actually committed a battery or that he was armed or that he armed himself while in the structure.”
Establishes the legal principle that charging information must explicitly allege all elements of the crime charged, not rely on facts that may be proven at trial.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceZettle was charged by information with attempted first degree murder and burglary. A jury found him guilty of attempted second degree murder and first…
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ERVIN, Judge.
Dennis Duane Zettle was charged by information with attempted first degree murder and burglary. A jury found him guilty of attempted second degree murder, a second degree felony, and first degree burglary with a battery, and he appeals. We affirm in part, reverse in part and remand.
In regard to the burglary with a battery conviction, the charging instrument alleged that appellant “did unlawfully enter or remain in a structure, to wit: a dwelling, the property of Stephen Harold Moore, when another human being, to wit: Stephen Harold Moore, was in said structure, with the intent to commit an offense therein, to wit: a battery, contrary to the provisions of Section 810.02, Florida Statutes.” (Emphasis added.) The information, at most, alleges only second degree burglary. See §§ 810.02(1), (8), Fla.Stat. (1987). For Zet-tle to have been convicted of first degree burglary under Section § 810.02(2), Florida Statutes (1987), the information necessarily had to allege that appellant actually committed a battery or that he was armed or that he armed himself while in the structure. Regardless of the fact that appellant actually did commit a battery or that he was armed, the elements necessary for the crime for which appellant was convicted must be alleged in the charging count and cannot be borrowed from other counts of the information. Because the information fails to allege the necessary elements for the first degree felony, we conclude that the conviction for first degree burglary with a battery cannot stand. Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA), review denied, 453 So. 2d 45 (1984); Smith v. State, 475 So. 2d 1336 (Fla. 2d DCA 1985).
In so holding, we observe, however, that appellant was sentenced to nine years for the burglary conviction, a legal sentence for a second degree felony conviction, and one within the guidelines in this case. Therefore, although we reverse the judgment and remand to the trial court for entry of a conviction of second degree bur glary, we affirm the sentence imposed, recognizing that the trial court may, in its discretion, impose a lesser sentence on remand.
Turning to the attempted second degree murder conviction, a review of the judgment and sentence reveals that although appellant was properly sentenced for a second degree felony, the judgment lists the crime as a first degree felony. This is incorrect. See §§ 782.04(2), (3), 777.-04(4)(b), Fla.Stat. (1987). Therefore, the judgment must also be reversed as to the conviction for attempted second degree murder in order to allow the trial court to correct the judgment to reflect that appellant was convicted of a second degree felony, not a first degree felony.
AFFIRMED in part, REVERSED in part and REMANDED with directions.
SMITH, C.J., and NIMMONS, J., concur.
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Mac Ray Wright v. State, 617 So. 2d 837 (Fla. 4th DCA 1993)…ed in section 810.02(2)(b). The indictment merely alleges that appellant unlawfully entered Ashe’s dwelling with the intent to commit an assault while armed. It does not state that appellant actually committed an assault therein. In Zettle v. State, 538 So. 2d 121 (Fla. 1st DCA 1989), the defendant was charged by information with attempted first-degree murder and burglary. The jury found him guilty of attempted second-degree murder and burglary with a battery. In reversing the burglary conviction, the court n…
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Antwaun Lopez Gordon v. State, 603 So. 2d 512 (Fla. 1st DCA 1992)…d. In so holding, the court concluded this was fundamental error under the rule stated in Ray, because the offense for which Cochenet was convicted was greater in degree and penalty than the offense with which he was charged. Accord Zettle v. State, 538 So. 2d 121 (Fla. 1st DCA 1989) (follows Cochenet, but did not involve issue of fundamental error). As in Cochenet, it was fundamental error to convict Gordon of the reclassified offense under section 784.08(2) when he was not properly charged with violating s…
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Gamble v. State, 661 So. 2d 1283 (Fla. 4th DCA 1995)…that it was fundamental error mandating reversal for the court to adjudicate and sentence a defendant for a first-degree misdemeanor when the state failed to allege the element making the offense a first-degree misdemeanor. See also Zettle v. State, 538 So. 2d 121 (Fla. 1st DCA 1989); Wright v. State, 617 So. 2d 837 (Fla. 4th DCA 1993). We agree with appellant and the state at the circuit court level when it conceded error. We therefore grant the petition for writ of certiorari, quash the affirmance by the c…
Authorities Cited
- Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA 1984)
- Helmholtz v. Helmholtz, 475 So. 2d 1336 (Fla. 2d DCA 1985)