JESSIE P. DUNCAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Duncan appealed his conviction for attempted burglary of a dwelling, challenging whether the trial court erred in failing to instruct the jury on the underlying offense. The Fourth District Court of Appeal affirmed, holding that Florida law does not require specification of the underlying offense in attempted burglary charges or jury instructions.
The trial court did not err. Florida law does not require the specification of a specific underlying offense in attempted burglary charges, and trial courts are not required to instruct the jury on the elements of an underlying offense in attempted burglary prosecutions.
[1] In a prosecution for attempted burglary, proof of the attempt to enter a structure or conveyance stealthily and without the owner's consent is prima facie evidence of att…
[2] In a prosecution for burglary or attempted burglary, the charging document need not specify the underlying offense intended.
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Join FLexlaw to unlock all legal intelligence“It is not necessary to allege the specific crime intended.”
Establishes that burglary charges need not specify the underlying offense
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Join FLexlaw to unlock all legal intelligenceDuncan was charged with attempted burglary of a dwelling. The trial court did not instruct the jury on the elements of an underlying offense. Duncan r…
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DOWNEY, Judge.
Appellant seeks review of a final judgment of conviction of attempted burglary of a dwelling and sentence of six months’ community control, followed by eighteen months’ probation.
Although appellant presents five points on appeal, only one warrants comment. The second point presented poses the question of whether the trial court erred in not instructing the jury on the underlying offense of the attempted burglary. We answer the question in the negative.
The crime of burglary is defined as:
[Ejntering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
§ 810.02(1), Florida Statutes (1989). A subsequent section, 810.07(1), provides that:
In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense.
The law is clear that in order to properly charge burglary the charging document must allege that the entry was made with the intention of committing an offense therein. State v. Waters, 436 So. 2d 66 (Fla.1983). It is not necessary to allege the specific crime intended. Id. Whether a specific crime is charged or not, the specific crime intended need not be proven. Graham v. State, 472 So. 2d 464 (Fla.1985). Furthermore, in a prosecution for burglary the state may rely on section 810.07 as prima facie evidence of intent to commit an offense whether the offense has been specified or not. The Graham court pointed out, however, that, in a prosecution for attempted burglary, the state is precluded from reliance on said statute. That pronouncement is no longer effective since the legislature amended section 810.07 by adding subsection two in 1987, which provides that:
In a trial on the charge of attempted burglary, proof of the attempt to enter such structure or conveyance at any time stealthily and without the consent of the owner or occupant thereof is prima facie evidence of attempting to enter with intent to commit an offense.
The foregoing demonstrates that, in a prosecution for burglary or attempted burglary, the specification of the specific offense intended is no longer required in the charging document and that the proof of intent may be facilitated by resort to section 810.07, Florida Statutes (1989). Under these circumstances, we deem it unnecessary for the trial court to instruct the jury on the elements of the underlying offense as provided by the burglary instruction in the Florida Standard Jury Instructions in Criminal Cases (1989 Ed.). In many instances, the state does not know the exact offense intended by the defendant. In that case, absent section 810.07, the state could not take the case to a jury in the face of the Standard Jury Instruction.
We therefore conclude that appellant’s second point on appeal does not present reversible error, thus mandating an affir-mance in this case.
WARNER and FARMER, JJ., concur.
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Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)…conveyance. The state maintains that the court’s instruction was not improper because it is not necessary to specifically charge or prove what particular offense was intended to be committed within the structure or conveyance. See Duncan v. State, 606 So. 2d 1227 [*825] (Fla. 4th DCA 1992). Likewise, it is not necessary to instruct the jury on the elements of the specific offense upon which the burglary charge is based, i.e., the specific offense which the defendant intended to commit within the structure or…
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Puskac v. State, 735 So. 2d 522 (Fla. 4th DCA 1999)…e. Viveros v. State, 699 So. 2d 822, 824 (Fla. 4th DCA 1997). Although it is not necessary to instruct the jury on the specific offense which the appellant intended to commit within the structure, Viveros, 699 So. 2d at 825 (citing Duncan v. State, 606 So. 2d 1227 (Fla. 4th DCA 1992)), it is necessary for the jury to find that appellant entered the premises to commit “an offense” therein. Here, the trial court gave the same instruction as that given in Viveros. In so doing, the trial court improperly instruc…
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Lou Joseph v. State, 965 So. 2d 357 (Fla. 4th DCA 2007)…at Defendant’s jury acquitted him of count II, committing the shooting offense, did not mean the state failed to prove the intent element of count I, so long as it proved he entered with the intention of committing some offense. See Duncan v. State, 606 So. 2d 1227 (Fla. 4th DCA 1992) (affirming conviction for attempted burglary of dwelling; prosecution need not specify in the charging document the specific offense intended by the perpetrator, and “proof of the entering of such structure or conveyance at any t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Waters, 436 So. 2d 66 (Fla. 1983)
- Graham v. State, 472 So. 2d 464 (Fla. 1985)