FRANKLIN REED, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Franklin Reed appealed his conviction for burglary of a structure with a human being inside, challenging the denial of his motion for acquittal, the sufficiency of the charging document, jury instructions, and various sentencing issues. The court affirmed his conviction and most of the sentence but reversed the assessment of a public defender fee that was imposed without required notice and hearing.
The court affirmed the conviction and upheld most of the sentence. The court held that a burglary information need not specify the offense intended to be committed within the structure, that failure to instruct on the underlying offense does not constitute fundamental reversible error, and that a presentence investigation report satisfies statutory assessment requirements. However, the court reversed the public defender fee assessment because it was imposed without the notice and hearing mandated by statute.
[1] An information charging burglary need not specify the offense the accused is alleged to have intended to commit within the structure.
[2] Failure to present an argument to the trial court precludes its assertion on appeal.
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Join FLexlaw to unlock all legal intelligence“An information charging burglary need not specify the offense the accused is alleged to have intended to commit within the structure.”
Establishes that the charging document was legally sufficient despite appellant's argument that it failed to allege the specific offense intended
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Join FLexlaw to unlock all legal intelligenceAppellant broke into a house while a 13-year-old girl waited outside. The girl testified that appellant asked her to wait so they could enter and enga…
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PER CURIAM.
Appellant brings this appeal from his conviction and sentence for the offense of burglary of a structure with a human being inside. We affirm appellant’s conviction, reversing his sentence only as to the public defender fee assessed against him.
Testimony adduced at trial revealed that appellant broke into a house while a girl he knew to be thirteen (13) years of age waited for him outside. The girl testified that appellant asked her to wait for him to break into the house so that the two could enter the house and engage in sexual intercourse. The girl also stated during her testimony that she did not want to engage in sexual intercourse with appellant. A detective who responded to the scene testified that the girl told him she had been waiting for appellant to open the door so that the two could enter the house to engage in sexual intercourse.
After the state rested, appellant moved for a judgment of acquittal arguing that the information charging him with burglary was defective because it did not allege the offense appellant intended to commit while inside the structure. The motion was denied. The trial court instructed the jury on the law, without objection from appellant. Appellant was found guilty and later sentenced, at which time the trial court assessed a public defender fee.
Appellant alleges error in the trial court’s denial of his motion for judgment of acquittal, however he does so by raising a new argument for the first time on appeal. Appellant now argues that the girl’s testimony that she did not want to engage in sexual intercourse created a reasonable doubt as a matter of law, and thus appellant was entitled to a judgment of acquittal. Appellant’s failure to present this argument before the trial court precludes its assertion on appeal. Johnson v. State, 478 So. 2d 885 (Fla. 3d DCA 1985), cause dismissed, 488 So. 2d 830 (Fla.1986). Even if we were to address this argument, we would conclude that it lacks merit. We also reject appellant’s attack upon the charging document. An information charging burglary need not specify the offense the accused is alleged to have intended to commit within the structure. State v. Waters, 436 So. 2d 66 (Fla.1983).
Appellant’s third point alleges error in the trial court’s failure to instruct the jury on the elements of the underlying offense, lewd assault. Appellant did not preserve this argument for appeal by timely objection in the trial court, but alleges that the error is fundamental. We disagree. Failure to define the underlying offense when instructing a jury on burglary does not constitute fundamental reversible error. See Oliverio v. State, 583 So. 2d 412 (Fla.1991).
Appellant’s fourth point concerns the assessment of a public defender fee. We agree that the trial court erred in imposing this fee without the required notice and hearing mandated by section 27.56, Florida Statutes (1989). In re R.B., 582 So. 2d 163 (Fla. 4th DCA 1991). Therefore we reverse the assessment of a public defender fee.
Lastly appellant argues that the trial court erred in sentencing him to a probation and restitution center without first obtaining an individual assessment and recommendation as provided in section 921.-187(l)(b)4, Florida Statutes (1989). The record reflects that a presentence investigation report was available to the sentencing judge. A presentence investigation report that contains the same information contemplated by the assessment and recommendation satisfies the requirement of section 921.187(l)(b)4. Therefore we find no error as concerns this point.
Accordingly, appellant’s conviction and sentence are affirmed except as to the assessment of a public defender fee.
AFFIRMED IN PART AND REVERSED IN PART.
GLICKSTEIN, C.J., and STONE and POLEN, JJ., concur.
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Griffin v. State, 705 So. 2d 572 (Fla. 4th DCA 1998)…or judgment of acquittal did not specifically set forth the ground argued on this appeal — namely, that the confinement of three-year-old Victoria Linn did not constitute a kidnapping since it was merely incidental to the robbery. See Reed v. State, 603 So. 2d 69 (Fla. 4th DCA 1992)(explaining that only those grounds raised in a motion for judgment of acquittal are reviewable on appeal). A motion for judgment of acquittal which does no more than generally allege that the State has failed to establish a prima…
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Pope v. State, 646 So. 2d 827 (Fla. 5th DCA 1994)…ve error for appeal. There was an objection, but not on the issue that has been argued before this court. By failing to present the argument to the trial court for review and ruling, Pope is precluded from raising the issue on appeal. Reed v. State, 603 So. 2d 69 (Fla. 4th DCA 1992). Furthermore, the facts support Pope’s conviction for kidnapping. The facts are the following. Pope committed a robbery by using a knife to take money from his victim, Richard Chuk. Pope then took Chuk from the point of the robb…
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In the Interest of L.B., 651 So. 2d 1274 (Fla. 4th DCA 1995)…tion to the determination, and to be represented by counsel, with due opportunity to exercise and be accorded the procedures and rights provided in the laws and court rules pertaining to civil cases at law. (Emphasis added.) See also Reed v. State, 603 So. 2d 69, 71 (Fla. 4th DCA 1992) (there was error in imposing public defender fee without required notice and hearing). L.B. was clearly not afforded the requisite notice and opportunity to be heard, as the trial court simply awarded the fee at the sentencin…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Waters, 436 So. 2d 66 (Fla. 1983)
- Darrel Michael Abbott v. State, 478 So. 2d 885 (Fla. 2d DCA 1985)
- In the Interest of R.B., 582 So. 2d 163 (Fla. 4th DCA 1991)
- Oliverio v. State, 583 So. 2d 412 (Fla. 4th DCA 1991)