ISAAC THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Isaac Thomas was convicted of burglary of a conveyance with intent to commit theft. The Florida appellate court reversed and remanded because the trial court erred by withdrawing a petit theft instruction without substituting the proper lesser-included offense of trespass, thereby leaving the jury with only an all-or-nothing choice between guilt and innocence on the burglary charge.
The trial court reversibly erred by failing to substitute the trespass instruction when requested. Although a timely request for a lesser-included offense instruction would normally be required, the novel circumstance where the trial court itself recalled the jury to withdraw a previously-given instruction created an obligation to provide the correct lesser-included offense instruction when requested by the defense.
[1] A trespass instruction is a mandatory lesser-included offense instruction for burglary of a conveyance when the evidence supports it.
[2] A trial court errs by failing to instruct the jury on a category 2 lesser-included offense when the pleadings and evidence demonstrate its inclusion in the charged offens…
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Join FLexlaw to unlock all legal intelligence“A category 2 lesser-included offense "must be instructed upon when the pleadings and evidence demonstrate that the lesser offense is included in the offense charged."”
Establishes the mandatory nature of instructing on permissive lesser-included offenses when evidence supports them
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Join FLexlaw to unlock all legal intelligenceThomas was charged with burglary of a conveyance with intent to commit theft. The evidence showed he entered a parked vehicle intending to commit thef…
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PER CURIAM.
Appellant was charged with, and convicted of, burglary of a conveyance with intent to commit theft therein.
He raises four points on appeal, one of which requires reversal.
At the charge conference, appellant requested an instruction on petit theft as a lesser-included offense of the burglary charge. The trial court gave the requested instruction. After the jury retired and had been deliberating for approximately 2 hours, the trial court determined it was error to instruct the jury on petit theft as a lesser-included offense of the crime. Appellant requested that a trespass instruction be substituted as a lesser-included offense but that was denied on the ground that the jury had already retired and therefore opposing counsel had no opportunity to argue the law and facts as they applied to trespass. The jury was recalled and told to disregard the instruction on petit theft. The jurors were told that they could now find appellant guilty or not guilty of burglary.
Trespass is a permissive or category 2 lesser-included offense of burglary of a conveyance. A category 2 lesser-included offense “must be instructed upon when the pleadings and evidence demonstrate that the lesser offense is included in the offense charged.” Wilcott v. State, 509 So. 2d 261, 262 (Fla.1987).
The information in this case charged appellant with burglary of a conveyance with intent to commit theft. The evidence showed that appellant entered a parked vehicle with the intent to commit the offense of theft. Thus, trespass, defined as the willful entry or remaining in a structure or conveyance under section 810.-08, Florida Statutes (1989), was a lesser-included offense of the crime charged in this case. Since it was the next-lower lesser-included offense of the crime appellant was convicted of, the failure to instruct on it constituted reversible error. Wilcott, 509 So. 2d at 262.
Notwithstanding the law of Wilcott, we would have affirmed this case because the defendant did not request the trespass instruction until after the jury had already retired to consider its verdict. See Fla. R.Crim.P. 3.390(d). Yet, this case presents a novel scenario which persuades us otherwise. At the judge’s behest, the jury was recalled and instructed to ignore the given instruction on petit theft. In so doing, the jury was left only with the option of finding appellant guilty of burglary. Under these circumstances, we believe it was incumbent upon the trial court to substitute the correct lesser-included instruction when he was requested to do so by the defense.
REVERSED AND REMANDED.
DOWNEY, LETTS and WARNER, JJ., concur.
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Darrin Bernard Rogers v. State, 626 So. 2d 339 (Fla. 4th DCA 1993)…was not requested at the charge conference, that oversight is no basis to deny a request — made during closing argument and then again after the jury charge itself — to give the lesser-included instruction. See Fla.R.Crim.P. 3.390; Thomas v. State, 591 So. 2d 259 (Fla. 4th DCA1991). The failure to give an authorized and requested lesser-included instruction is reversible error. Amado v. State, 585 So. 2d 282 (Fla.1991). REVERSED FOR NEW TRIAL. DELL, C.J., and STONE, J., concur. . See § 893.13(l)(a), Fla.S…
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Baker v. State, 622 So. 2d 1333 (Fla. 1st DCA 1993)…nal mischief is not a necessary or a permissive lesser-included offense of burglary,4 appellant cannot be convicted of such offense as one lesser included. Because, however, trespass is a permissive or category-2 lesser offense, see Thomas v. State, 591 So. 2d 259 (Fla. 4th DCA 1991), and both the proof submitted and the allegations of the information support the imposition of such lesser offense, I would reverse appellant’s conviction for burglary of a dwelling, with instructions that the trial court impose…
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Hannah v. State, 42 So. 3d 951 (Fla. 4th DCA 2010)…category 2 lesser-included offense of burglary of a conveyance. A category 2 lesser-included offense ‘must be instructed upon when the pleadings and evidence demonstrate that the lesser offense is included in the offense charged.’ ” Thomas v. State, 591 So. 2d 259, 260 (Fla. 4th DCA 1991) (quoting Wilcott v. State, 509 So. 2d 261, 262 (Fla.1987)) (alteration in original); see also Piccioni v. State, 833 So. 2d 247, 248 (Fla. 4th DCA 2002) (“When requested by the defendant, an instruction on a category two per…
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- Wilcott v. State, 509 So. 2d 261 (Fla. 1987)