MICHAEL PUSKAC, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Puskac appeals his conviction for burglary of a dwelling and grand theft. The Fourth District Court of Appeal affirms the grand theft conviction but reverses the burglary conviction due to an improper jury instruction that created a circular definition by requiring intent to commit 'burglary' rather than intent to commit 'an offense' within the structure.
The trial court committed fundamental error by improperly instructing the jury on burglary. The instruction was circular because it defined the crime by reference to itself rather than requiring the jury to find that the appellant entered the premises with intent to commit 'an offense' therein. The burglary conviction is reversed and the case is remanded for a new trial on that charge.
[1] A jury instruction defining burglary as requiring intent to commit "burglary" within a structure, rather than intent to commit "an offense" therein, constitutes fundament…
[2] A conviction for burglary of a dwelling will be reversed when the jury is improperly instructed on the intent element.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“"Burglary" means entering or remaining in a structure or conveyance with the intent to commit "an offense" therein.”
Establishes the statutory definition of burglary requiring intent to commit 'an offense,' not burglary itself
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Join FLexlaw to unlock all legal intelligenceOn November 7, 1996, Puskac was charged with burglary of a dwelling and grand theft. After two mistrials, a jury rendered a guilty verdict on October …
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DELL, J.
Michael A. Puskac appeals his conviction and sentence for burglary of a dwelling (Count I) and grand theft (Count II). Appellant argues five points on appeal, four of which we affirm without discussion. However, we reverse appellant’s burglary conviction because of an improper jury instruction.
On November 7, 1996, appellant was charged by information with burglary of dwelling and grand theft. After two mistrials, on October 29, 1997, the jury ren dered a verdict finding the appellant guilty as charged. The court sentenced him as a habitual offender, to fifteen years on Count I arid ten years on Count II, concurrent with each other, but consecutive to a previous fifteen-year habitual offender sentence.
Appellant contends that the trial court committed fundamental error by improperly instructing the jury on burglary. He argues that the trial court named the underlying offense as “burglary,” which created a circular definition that defined trespass, rather than the crime of burglary.
“Burglary” means entering or remaining in a structure or conveyance with the intent to commit “an offense” therein. § 810.02, Fla. Stat. (1993). An essential element of burglary is an intent to commit “an offense”. State v. Waters, 436 So. 2d 66, 68 (Fla.1983).... [I]t is circular to define “burglary” by indicating the need to show an intent to commit “burglary” within the structure or conveyance, rather than an intent to commit an underlying “offense” within the structure.
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 instructed the jury on “intent to commit the offense of burglai’y,” rather than on “intent to commit an offense.” For the reasons discussed in Viveros, we must hold the erroneous instruction constituted fundamental error. Hence, we reverse appellant’s conviction for burglary of a dwelling and remand for a new trial on this charge.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
SHAHOOD and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Freeman v. State, 787 So. 2d 152 (Fla. 4th DCA 2001)…that the jury was not instructed that burglary required intent to commit another offense after entry of the structure. We concluded that the error was fundamental and reversed. We find Viveros, and another case identical to Viveros, Puskac v. State, 735 So. 2d 522 (Fla. 4th DCA 1999), distinguishable from this case, because in this case the jury was ultimately instructed that there had to be an intent to commit theft after the entry. Closer on point, but still not identical, is Valentine v. State, 774 So. 2d…
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Nicolo Giangrasso v. State, 793 So. 2d 71 (Fla. 4th DCA 2001)…the jury as to the specific offense intended to be committed; however, it does require that the court define burglary by indicating the need to find intent to commit an underlying “offense,” rather than intent to commit “burglary.” Puskac v. State, 735 So. 2d 522, 523 (Fla. 4th DCA 1999). We note that in Valentine v. State, 774 So. 2d 934 (Fla. 5th DCA 2001), the court concluded that an instruction indicating the need to find intent to commit the offense of “burglary with an assault or battery” does not mee…
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Perreault v. State, 831 So. 2d 784 (Fla. 5th DCA 2002)…s not necessary to instruct the jury on the specific offense which the defendant intended to commit within the structure, it is necessary for the jury to find that the defendant entered the premises to commit an offense therein. See Puskac v. State, 735 So. 2d 522 (Fla. 4th DCA 1999). Also, Ellis v. State, 425 So. 2d 201 (Fla. 5th DCA 1983) provides: The burglary statute (§ 810.02, Fla. Stat.(1981)) defines burglary as entering or remaining in a structure with the intent to commit any offense therein. This r…
Previewing 3 of 7 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)
- Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)
- Ward v. State, 606 So. 2d 1227 (Fla. 4th DCA 1992)
- Duncan v. State, 606 So. 2d 1227 (Fla. 4th DCA 1992)