ANDREW L. PRATER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the omission of a lesser included offense from the jury verdict form, despite its inclusion in jury instructions, constitutes reversible error.
The defendant was charged with burglary of a dwelling and convicted. The jury instructions included the lesser included offense of simple burglary, bu…
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BLUE, Judge.
Andrew L. Prater contends the trial court erred by failing to submit to the jury a verdict form for simple burglary, the next lesser included offense of burglary of a dwelling for which he was charged and convicted under section 810.02, Florida Statutes (1989). We agree and reverse.
In this case, the trial court’s written and oral instructions to the jury properly included the charged offense of burglary of a dwelling as well as the lesser included offense of simple burglary. In re: Std. Jury Instr. In Crim. Cases, 543 So. 2d 1205, 1233 (Fla.1989). The verdict form, however, included only the choices guilty of burglary of a dwelling or not guilty. A verdict form, such as the one in this case, that is not in conformance with the jury instructions is defective. Wilson v. State, 566 So. 2d 36 (Fla. 4th DCA 1990).
The lesser included offense of simple burglary that was omitted from the verdict form was only “one step” removed from the primary offense of burglary of a dwelling. The trial court’s omission of the lesser offense precluded the jury from exercising its inherent pardon power if it conclud ed the evidence warranted only a conviction of simple burglary. State v. Abreau, 363 So. 2d 1063, 1064 (Fla. 4th DCA 1978). This omission is error and is per se reversible. Fernandez v. State, 570 So. 2d 1008, 1110 (Fla. 2d DCA 1990) rev. denied, 581 So. 2d 167 (Fla.1991). Accordingly, we reverse the judgment and sentence for count I of case number 90-2873F and remand for a new trial on that count.
RYDER, A.C.J., and CAMPBELL, J., concur.
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McKIVER v. State, 55 So. 3d 646 (Fla. 1st DCA 2011)…ons in Criminal Cases-Report No. 2007-11, 986 So. 2d 563 (Fla.2008); Bethea v. State, 767 So. 2d 630, 630-31 (Fla. 5th DCA 2000) (noting that burglary of a structure is a necessary lesser-included offense of burglary of a dwelling); Prater v. State, 608 So. 2d 559, 559 (Fla. 2d DCA 1992) (noting that simple burglary is “only ‘one step’ removed from the primary offense of burglary of a dwelling”). Accordingly, failure to instruct the jury on trespass is not per se reversible under Abreau and its progeny. See S…
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Morris v. State, 658 So. 2d 155 (Fla. 1st DCA 1995)…find him guilty of the lesser-included offense of unarmed robbery, an offense on which the jury had been instructed. The general rule is that a verdict form is defective when it does not conform with instructions given to the jury. Prater v. State, 608 So. 2d 559 (Fla. 2d DCA 1992) (citing Wilson v. State, 566 So .2d 36 (Fla. 4th DCA 1990)). Morris’ argument, however, must fail because the issue was not properly preserved for appeal. In non-capital cases, failure to instruct as to necessarily lesser-included…
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Bethea v. State, 767 So. 2d 630 (Fla. 5th DCA 2000)…case is substantially similar enough to require an evidentiary hearing. See Moore v. State, 496 So. 2d 255, 256 (Fla. 5th DCA 1986)(holding that verdict which is not in conformance with the jury instructions was defective); see also Prater v. State, 608 So. 2d 559 (Fla. 2d DCA 1992)(holding that trial court committed per se reversible error when it omitted a necessarily lesser included offense from the verdict form, precluding the jury from exercising its pardon power); Robertson v. State, 532 So. 2d 90, 91 (…
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
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- In re Standard Jury Instructions in Criminal Cases, 543 So. 2d 1205 (Fla. 1989)
- Elio Frank Fernandez, Jr. v. State, 570 So. 2d 1008 (Fla. 2d DCA 1990)
- Wilson v. State, 566 So. 2d 36 (Fla. 4th DCA 1990)