WILLIAM CRUZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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William Cruz appealed his burglary conviction, arguing the trial court committed fundamental error by failing to instruct the jury on an abandonment defense without his request. The court affirmed the conviction but reversed the $225 cost assessment imposed without due process notice.
The court held that assuming abandonment is a cognizable defense to burglary, there was no fundamental error in failing to instruct on it because no evidence showed Cruz could reasonably believe the vehicle was abandoned. However, the imposition of $225 in court costs without prior notice or opportunity to be heard was fundamental error requiring reversal.
[1] A trial court's failure to instruct a jury on a defense is not fundamental error if there is no evidence in the record to support the defense.
[2] A defendant cannot rely on the defense of abandonment for a stolen vehicle when there is no evidence that the defendant reasonably believed the vehicle was abandoned.
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“there is utterly no evidence in this record upon which the defendant could rely to show that he reasonably believed that the stolen automobile herein was an abandoned automobile”
Establishes that no factual basis existed for the abandonment defense, so failure to instruct was not fundamental error
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Join FLexlaw to unlock all legal intelligenceCruz was caught by police dismantling a stolen automobile. He was convicted of burglary of an automobile by jury verdict. The trial court imposed $225…
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PER CURIAM.
This is an appeal by the defendant William Cruz from a final judgment of conviction and sentence for burglary of an automobile which was entered below upon an adverse jury verdict. The defendant raises as his central point on appeal that the trial court committed reversible error in failing to instruct the jury on the defense of abandonment; the defendant acknowledges that he made no request for such an instruction at trial, but contends, nonetheless, that the error here was fundamental because the defense went to the heart of the case, namely, the lack of criminal intent. We disagree and affirm.
Assuming without deciding that abandonment is a legally cognizable defense to burglary of an automobile, cf. § 705.102, Fla.Stat. (1987), there is utterly no evidence in this record upon which the 'defendant could rely to show that he reasonably believed that the stolen automobile herein [which the defendant was dismantling when caught by the police] was an abandoned automobile. Plainly, no miscarriage of justice, and thus no fundamental error, is presented on this record by the trial court’s failure to instruct the jury on the “defense” of abandonment. See Ray v. State, 403 So. 2d 956, 960-61 (Fla.1981); Castor v. State, 365 So. 2d 701, 703 (Fla.1978); Baker v. State, 241 So. 2d 683, 687 (Fla.1970); Vergara v. State, 486 So. 2d 14, 15 (Fla. 3d DCA 1986); Williams v. State, 400 So. 2d 542, 544 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983).
The state concedes, however, and we agree that it was a fundamental error for the trial court to impose $225 in court costs because the defendant was afforded no pri-or notice or an opportunity to be heard with respect to the assessment of such costs; indeed, this issue was not even discussed at the sentencing hearing below. This being so, the assessment of such costs cannot stand. Wood v. State, 544 So. 2d 1004 (Fla.1989); Mays v. State, 519 So. 2d 618 (Fla.1988); Jenkins v. State, 444 So. 2d 947 (Fla.1984).
The final judgment of conviction and sentence under review is affirmed, save for the $225 assessment of costs which is hereby reversed; ,the state, upon remand, may seek a proper assessment of costs upon giving the defendant proper due process notice.
Affirmed in part; reversed in part.
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Mirtha Castellvi Alvarez v. Alvarez, 566 So. 2d 516 (Fla. 3d DCA 1990)…on. Our court has acknowledged, in common with other courts which have considered the issue and the comment to the Uniform Act itself, that situations will arise in which states have concurrent jurisdiction under the Act. See, e.g., Worth v. Worth, 554 So. 2d 586 (Fla. 3d DCA 1989); Newcomb v. Newcomb, 507 So. 2d 1145 (Fla. 3d DCA 1987); see also Uniform Child Custody Jurisdiction Act § 3, 9 U.L.A. 144 (1968).2 A major goal of the Act is to eliminate jurisdictional conflict, so that where there is concurrent…
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Berube v. State, 149 So. 3d 1165 (Fla. 2d DCA 2014)…s have employed numerous definitions to describe such a "fundamental” error. It can be an error going to the "heart of the judicial process,” Martinez v. State, 933 So. 2d 1155, 1159 (Fla. 3d DCA 2006), or to the "heart .of the case,” Cruz v. State, 554 So. 2d 586, 587 (Fla. 3d DCA 1989). It can be an error going to the "foundation” of the case or merely to the "merits” of the case. See Abdool v. State, 53 So. 3d 208, 220 (Fla.2010) (quoting Bailey v. State, 998 So. 2d 545, 554 (Fla.2008)); see also Daniels,…
Authorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- RAY v. State, 403 So. 2d 956 (Fla. 1981)
- Mays v. State, 519 So. 2d 618 (Fla. 1988)
- Wood v. State, 544 So. 2d 1004 (Fla. 1989)
- Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)
- Rogers v. Trigg, 459 U.S. 1149 (U.S. 1983)
- Hoover v. Mississippi, 459 U.S. 1149 (U.S. 1983)
- Baker v. State, 241 So. 2d 683 (Fla. 1970)
- Vergara v. State, 486 So. 2d 14 (Fla. 3d DCA 1986)