LAWRENCE VINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Lawrence Vinson was duly convicted upon trial by jury and sentenced for burglary of a dwelling with assault and battery. He appeals. We reverse and remand.
In our opinion the trial court committed fundamental reversible error by instructing the jury on the presumption of intent arising from stealthy entry when the entry was manifestly not in fact stealthy. We reverse upon authority of Peters v. State, 76 So. 2d 147 (Fla.1954) and remand for a new trial.
In addition we reverse the imposition of court costs and public defender fee against Mr. Vinson because he was not given notice and an opportunity to be heard as to such matters. See Mays v. State, 519 So. 2d 618 (Fla.1988) and Jenkins v. State, 444 So. 2d 947 (Fla.1984).
REVERSED and REMANDED for further proceedings consistent herewith.
DOWNEY, GARRETT, JJ., and WALDEN, JAMES H., (Retired), Associate Judge, concur.
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Citator
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Harrell v. State, 647 So. 2d 1016 (Fla. 4th DCA 1994)…ing was with the intent to commit a crime if, from the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the intent existed. This instruction should only be given where there is a stealthy entry. Vinson v. State, 575 So. 2d 1371 (Fla. 4th DCA 1991). In the present case the entry was anything but stealthy, since the robber, in full view of the victim, first tried to open her locked car door, and then smashed the window. Reversed and remanded for a new trial. HERSEY and WAR…
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Daughtry v. State, 804 So. 2d 426 (Fla. 4th DCA 2001)…d the apartment and proceeded to strike her repeatedly. At trial, the state requested the standard jury instruction on “stealthy entry” used in burglary cases, to which defendant objected.2 The jury returned a verdict of guilty. In Vinson v. State, 575 So. 2d 1371 (Fla. 4th DCA 1991), we found it fundamental error to give the instruction without evidence of stealth, relying on Peters v. State, 76 So. 2d 147 (Fla.1954). The facts in Vinson are all but identical to the present case. In Peters, where the evidenc…
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Frazier v. State, 664 So. 2d 985 (Fla. 4th DCA 1995)…the state of Florida. Gray must be applied to this case. Finally, on retrial the trial court should not provide the jury with the stealth instruction, as the entry into the residence in this burglary was anything but stealthy. See Vinson v. State, 575 So. 2d 1371 (Fla. 4th DCA 1991); Harrell v. State, 647 So. 2d 1016 (Fla. 4th DCA 1994). The testimony revealed that the appellant smashed through the glass door of the home in broad daylight and in the presence of the victims. Reversed and remanded for procee…
Authorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Mays v. State, 519 So. 2d 618 (Fla. 1988)
- Peters v. State, 76 So. 2d 147 (Fla. 1954)