FREDERICK WESTLUND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frederick Westlund appealed his convictions for attempted burglary and resisting arrest with violence, challenging the trial court's jury instructions on voluntary intoxication as a defense, the procedure for a reinstruction during deliberations, and admission of a knife into evidence. The Florida Fourth District Court of Appeal reversed and remanded for a new trial, finding the erroneous limitation of the voluntary intoxication defense to be reversible error.
The trial court's failure to properly instruct the jury that voluntary intoxication constitutes a valid defense to attempted burglary requires reversal. The reinstructions issue lacks merit because defense counsel failed to object. The admission of the knife constituted error but standing alone would be insufficient to warrant reversal.
[1] Voluntary intoxication constitutes a valid defense to the specific intent crime of attempted burglary.
[2] A trial court's failure to properly instruct the jury on the defense of voluntary intoxication requires reversal of convictions for attempted burglary.
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“It is well settled that voluntary intoxication constitutes a valid defense to the specific intent crime of attempted burglary.”
Establishes the controlling law that the trial court should have properly instructed the jury on this defense for all relevant charges.
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Join FLexlaw to unlock all legal intelligenceWestlund consumed seven or eight margaritas and broke into an apartment he believed belonged to a friend, taking two packs of cigarettes, a wine coole…
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PER CURIAM.
Frederick Westlund appeals his convictions for attempted burglary and resisting arrest with violence. Appellant argues that the trial court erred: when it failed to properly instruct the jury that voluntary intoxication constituted a defense to attempted burglary; when it reinstructed the jury without seeking prior input from either the defense counsel or the prosecutor; and when it overruled defense counsel’s objection to appellant’s knife being offered into evidence. We reverse.
The record reflects that appellant consumed at least seven or eight margaritas on the night in question. He then broke into an apartment he thought belonged to a friend. Once inside, he allegedly took two packs of Marlboro cigarettes, a wine cooler and several pieces of candy. The resident of the apartment awoke, saw appellant, and commanded her dogs to chase appellant from the premises. Soon after, police officers arrested appellant and discovered a pack of Marlboro cigarettes and a buck knife on his person.
Appellant conceded that he had broken into the apartment, but relied upon the defense of voluntary intoxication. At the close of evidence the trial court instructed the jury on the offense of burglary and the lesser included offenses of attempted burglary and trespass of an occupied dwelling. The court also instructed the jury on the defense of voluntary intoxication, but erroneously limited its application to burglary by saying that “[tjhere is not a defense to a lesser crime.” It is well settled that voluntary intoxication constitutes a valid defense to the specific intent crime of attempted burglary. See Ellis v. State, 425 So. 2d 201 (Fla. 5th DCA), approved, 442 So. 2d 213 (1983); Groneau v. State, 201 So. 2d 599 (Fla. 4th DCA), cert. denied, 207 So. 2d 452 (1967). The trial court’s failure to properly instruct the jury on the defense of voluntary intoxication requires a reversal of appellant’s convictions.
Appellant’s other points require brief mention. During deliberations, the jury submitted a question to the court seeking additional instructions. In response, the trial court, in the presence of the appellant, his defense counsel and the prosecutor, recalled the jury and gave a reinstruction without first conferring with the parties. The record shows that all necessary parties were present pursuant to Fla.R. Crim.P. 3.410. We find no merit in appellant’s contention that the trial court failed to afford the parties an opportunity to offer argument on the requested reinstruction since the defense counsel failed to object to either the reinstruction or the procedure employed by the court.
Finally, we hold that the trial court erred in admitting the appellant’s buck knife into evidence over relevancy objections. The record reveals no connection between the knife and the crimes charged. We note, however, that under the facts of this case, such error, standing alone, would be insufficient to warrant reversal.
REVERSED AND REMANDED FOR A NEW TRIAL.
HERSEY, C.J., and DELL and WALDEN, JJ., concur.
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Alexander v. State, 575 So. 2d 1370 (Fla. 4th DCA 1991)…to make the record show that all requirements of due process, including the opportunity to be heard on the instruction to be given, have been met. This “blue card” statement will not suffice to meet that important responsibility. Westlund v. State, 570 So. 2d 1133 (Fla. 4th DCA 1990), is not controlling here because, in Westlund, the record shows counsel was present and simply failed to object to the court’s action. Accordingly, the judgment of conviction and sentence appealed from are reversed and the cause…
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Jones v. State, 681 So. 2d 913 (Fla. 4th DCA 1996)…PER CURIAM. AFFIRMED. See Westlund v. State, 570 So. 2d 1133 (Fla. 4th DCA 1990). WARNER, PARIENTE and STEVENSON, JJ., concur.…
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Garcia v. State, 598 So. 2d 1082 (Fla. 4th DCA 1992)…PER CURIAM. AFFIRMED. See Westlund v. State, 570 So. 2d 1133 (Fla. 4th DCA 1990). ANSTEAD, WARNER and FARMER, JJ., concur.…
Authorities Cited
- Groneau v. State, 201 So. 2d 599 (Fla. 4th DCA 1967)
- Ellis v. State, 425 So. 2d 201 (Fla. 5th DCA 1983)
- Groneau v. State, 207 So. 2d 452 (Fla. 1967)
- Schack v. State, 207 So. 2d 452 (Fla. 1967)
- THE Florida BAR v. Routh, 442 So. 2d 213 (Fla. 1983)