GARY WAYNE BERNHARDT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the conviction, finding that while an erroneous written jury instruction existed, it could not be confirmed that the jury received it.
The defendant was convicted of attempted burglary of a dwelling. The written jury instructions contained an error regarding the intent required for bu…
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PER CURIAM.
Gary Bernhardt appeals his conviction and sentence for attempted burglary of a dwelling. We affirm notwithstanding the fact that the record contains an erroneous written jury instruction.
Mr. Bernhardt was charged with burglary of a dwelling. The jury found him guilty of the lesser offense of attempted burglary. The transcript of the trial reflects that the trial court provided a correct burglary instruction when the judge read the instructions to the jury. The written instructions in the record, however, incorrectly state that, to find him guilty of burglary, the jury must find that “at the time of entering the structure Gary Bernhardt had a fully-formed conscious intent to commit the offense of burglary in that structure.” (Emphasis added.) If this instruction was given to the jury, precedent suggests that the error is fundamental. See Davis v. State, 736 So. 2d 27 (Fla. 4th DCA 1999); Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997).
Our reading of the transcript strongly suggests that the written instructions were never given to the jury. Nevertheless, we are unable to determine that the jury did not receive these incorrect instructions. If Mr. Bernhardt can allege under oath that the erroneous written instructions were in fact given to the jury, he may seek timely postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.
Affirmed.
ALTENBERND, A.C.J., and SALCINES, J., and DANAHY, PAUL W., (Senior) Judge, Concur.
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Concepcion v. State, 857 So. 2d 299 (Fla. 5th DCA 2003)…ndants’ conspiracy convictions as well since the jury was required to consider the trafficking instruction in determining the issue of guilt on the conspiracy charge. As such, the convictions on both charges must be reversed. See Bernhardt v. State, 741 So. 2d 1230 (Fla. 2d DCA 1999)(holding that allegation that jury received erroneous written instruction could form basis for post-conviction relief even though correct instruction was read to the jury). Judgments and Sentences REVERSED; causes REMANDED. SAWAY…
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Valentine v. State, 774 So. 2d 934 (Fla. 5th DCA 2001)…tates the elements of the offense. The error in the oral instructions was discovered at trial, and correct written instructions were given to the jury. However, the correction was never brought to the jury’s attention. [*937] Cf. Bernhardt v. State, 741 So. 2d 1230 (Fla. 2d DCA 1999). It cannot be assumed that the jury noticed the change in the instructions and disregarded the erroneous instruction. Valentine also contends that the trial court erroneously instructed the jury on the offense of burglary of a co…
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LEE v. State, 958 So. 2d 521 (Fla. 2d DCA 2007)…ive years prior to the filing of the notice of appeal from the judgment and sentences in this case, this court had held that a circular burglary instruction such as the one given in the present case constituted fundamental error. Bernhardt v. State, 741 So. 2d 1230, 1230 (Fla. 2d DCA 1999). However, because the correct burglary instruction was read to the jury and the trial transcript strongly suggested that the erroneous written instruction was not provided to the jury, we affirmed Mr. Bernhardt’s attempted b…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)
- Osby Davis v. State, 736 So. 2d 27 (Fla. 4th DCA 1999)