L.F., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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L.F., a juvenile, appealed his adjudication of delinquency for criminal mischief and trespass in a conveyance. The court affirmed the criminal mischief conviction but reversed the trespass conviction because the delinquency petition failed to allege all essential elements of the offense, specifically the willful entry or remaining in the motor vehicle.
The court reversed the trespass adjudication because the delinquency petition failed to allege the essential element of willful entry or remaining in the conveyance. Although the trial evidence supported a trespass finding, the petition's failure to allege all elements required reversal. The court also held that Rule 8.110(j) encompasses both necessarily lesser included offenses and permissive lesser included offenses.
[1] A delinquency petition must allege all essential elements of an offense to support an adjudication of delinquency for that offense.
[2] A conviction for trespass in a conveyance requires an allegation that the defendant willfully entered or remained in the conveyance.
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Join FLexlaw to unlock all legal intelligence“Trespass in a conveyance is not a necessarily lesser included offense of grand theft of a motor vehicle. However, it may be a permissive lesser included offense if the elements are alleged in the accusatory pleading and supported by the evidence adduced at trial.”
Establishes the requirement that even permissive lesser included offenses must have their elements alleged in the charging document
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Join FLexlaw to unlock all legal intelligenceL.F. was charged with criminal mischief, obstructing or opposing an officer without violence, and grand theft of a motor vehicle. After a bench trial,…
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FULMER, Judge.
L.F. appeals his adjudication of delinquency for criminal mischief and trespass in a conveyance. We affirm the criminal mischief adjudication without discussion. We reverse the trespass adjudication because the delinquency petition failed to allege all the essential elements of this offense.
The state filed a delinquency petition charging L.F. with one count of criminal mischief, in violation of section 806.13(l)(b)3, Florida Statutes (1993), one count of obstructing or opposing an officer without violence, in violation of section 843.02, Florida Statutes (1993), and one count of grand theft of a motor vehicle, in violation of section 812.014(2)(c)4, Florida Statutes (1993).
After a bench trial, the trial court found L.F. guilty, as charged, of criminal mischief and obstructing or opposing an officer without violence. As to the grand theft charge, the trial court found L.F. guilty of the lesser included offense of trespass in a conveyance, in violation of section 810.08(1), Florida Statutes (1993).
Trespass in a conveyance is not a necessarily lesser included offense of grand theft of a motor vehicle.
However, it may be a permissive lesser included offense if the elements are alleged in the accusatory pleading and supported by the evidence adduced at trial. Jones v. State, 666 So. 2d 960 (Fla. 3d DCA 1996).
The defendant asserts, and the state concedes, that the adjudication on this count must be reversed because the delinquency petition fails to allege all the statutory elements of trespass in a conveyance. In particular, the petition fails to allege that L.F. willfully entered or remained in the motor vehicle. Therefore, notwithstanding the fact that the evidence presented at trial supported the trial court’s determination that L.F. committed the offense of trespass in a conveyance, we must reverse with directions that the adjudication of delinquency on this count be vacated. See I.T. v. State, 694 So. 2d 720 (Fla. May 9, 1997).
We recognize that our decision in this case implicitly conflicts with the holding in T.Y. v. State, 660 So. 2d 771 (Fla. 3d DCA 1995), that Florida Rule of Juvenile Procedure 8.110(j) authorizes the trial court to find a child guilty of a necessarily lesser included offense, but not a permissive lesser included offense.
However, the Third District based its construction of rule 8.110® on the supreme court’s construction of similar language in section 924.34, Florida Statutes, in Gould v. State, 577 So. 2d 1302 (Fla.1991). The supreme court receded from Gould in I.T., 694 So. 2d at 722, and held that section 924.34 encompasses both necessarily lesser included offenses as well as permissive lesser included offenses. Consistent with the reasoning of I.T., we conclude that rule 8.110® likewise encompasses both necessarily lesser included offenses and permissive lesser included offenses.
Affirmed in part, reversed in part with directions.
SCHOONOVER, AC.J., and BLUE, J„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Dante Wright v. State, 983 So. 2d 6 (Fla. 1st DCA 2007)…lements and the facts alleged in the accusatory pleading are consulted.” Id. n. 2. The misdemeanor of trespass in a conveyance may be a Category 2 permissive lesser included offense within the charged offense of grand theft auto. See L.F. v. State, 694 So. 2d 840 (Fla. 2d DCA 1997); I.T., 694 So. 2d at 721 (“[Trespass to a conveyance is not a necessarily lesser included offense of grand theft-”). “[T]o qualify, however, as a proper [Category 2 permissive lesser included offense, [*9] the indictment or inform…
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F.N. v. State, 745 So. 2d 1149 (Fla. 4th DCA 1999)…alleged in a petition “necessarily includes lesser offenses[,] the court may find the child committed such a lesser offense.” Rule 8.110® “encompasses both necessarily lesser included offenses and permissive lesser included offenses.” L.F. v. State, 694 So. 2d 840, 841 (Fla. 2d DCA 1997). Attempts are a category of permissive lesser included offense. See State v. Barritt, 531 So. 2d 338, 343 (Fla.1988) (Shaw, J., concurring); Gregg v. State, 724 So. 2d . 158, 159 (Fla. 5th DCA 1998), rev. denied, 735 So. 2d 1…
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K.B. v. State, 170 So. 3d 121 (Fla. 2d DCA 2015)…everse the court’s finding of guilt for burglary. However, KB. is not entitled to discharge. Trespass is a permissive lesser included offense for burglary if the elements are alleged in the petition and supported by the evidence. See L.F. v. State, 694 So. 2d 840, 840 (Fla. 2d DCA 1997); see also McKiver v. State, 55 So. 3d 646, 649 (Fla. 1st DCA 2011). Here, the allegations of the delinquency petition were sufficient to encompass the elements of trespass, and the evidence showed that K.B. made a nonconsensu…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- I.T. v. State, 694 So. 2d 720 (Fla. 1997)
- Buckley v. State, 577 So. 2d 1302 (Fla. 1991)
- Jones v. State, 666 So. 2d 960 (Fla. 3d DCA 1996)
- T.Y. v. State, 660 So. 2d 771 (Fla. 3d DCA 1995)