KENNETH FREEMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Freeman was convicted of burglary and grand theft after admitting to driving a getaway vehicle and acting as lookout during a burglary. Freeman appealed, arguing the jury instruction on burglary's intent element was erroneous, but the court affirmed because the instruction was cured by a subsequent correction clarifying the required intent to commit theft.
The court held that while the first portion of the jury instruction used the incorrect term 'burglary' instead of 'theft,' the error was cured by the second portion of the instruction which correctly required the jury to find intent to commit theft along with unlawful entry, leaving no possibility of jury confusion.
[1] A jury instruction that initially misstates an element of burglary can be cured by a subsequent, correct instruction that clarifies the required intent.
[2] A conviction for burglary requires proof of an unlawful entering or remaining in a structure with the intent to commit theft.
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Join FLexlaw to unlock all legal intelligence“Even though an unlawful entering or remaining in a structure is proved, if the evidence does not establish that it was done with the intent to commit, theft, the defendant must be found not guilty.”
This portion of the jury instruction correctly stated the burglary element and cured the error in the first portion.
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Join FLexlaw to unlock all legal intelligenceFreeman gave police a statement admitting he drove a vehicle and acted as lookout while others burglarized a residence. At trial, he recanted the stat…
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KLEIN, J.
After appellant became a suspect in a burglary, he gave the police a statement admitting he had driven the vehicle and acted as a lookout while other men had burglarized a residence. Although he recanted his statement and testified at trial that on the day of the burglary he had been employed at a fish market which had no record of his employment, he was convicted of burglary and grand theft. We affirm.
Appellant argues that the trial court erred in instructing the jury on one of the elements of burglary as follows:
And at the time of entering the structure Kenneth Freeman had a fully-formed, conscious intent to commit the offense of burglary in the structure....
The court should have used the word “theft” instead of “burglary.” The court did use the proper wording when it completed the instruction:
Even though an unlawful entering or remaining in a structure is proved, if the evidence does not establish that it was done with the intent to commit, theft, the defendant must be found not guilty.
Appellant relies on Viveros v. State, 699 So. 2d 822, 824 (Fla. 4th DCA 1997), in which the trial court made the same error that the court made in this case, but made it in both parts of the instruction, so 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 934, 936 (Fla. 5th DCA 2001), in which the defendant was charged with breaking into a vehicle in which he assaulted his former girlfriend, and the trial court erroneously instructed the jury as follows:
[A]nd at the time of entering or remaining in the conveyance, Ramon L. Valentine had a fully formed conscious intent to commit the offense of burglary with an assault or battery in that conveyance.
Even though an unlawful entering or remaining in a conveyance is proved, if the evidence does not establish that it was done with the intent to commit burglary with an assault or battery, the defendant must be found not guilty.
The emphasized language should have been omitted, and the fifth district reversed for a new trial. Despite the state’s concession of error, Judge Sharp dissented, reasoning that, although the instructions were not exactly correct, they still required the jury to find that the defendant had committed a specific crime, assault or battery, as part of the offense of burglary. We think Judge Sharp’s point was well taken.
We conclude that the error in the first portion of the instruction in this case was cured by the second portion of the instruction, which was correct and made it clear that the jury had to find an intent to commit theft along with an unlawful entry. The jury could not, accordingly, have been confused. We find no error in the other issue raised by appellant and therefore affirm.
STONE and HAZOURI, JJ., concur.
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LEE v. State, 958 So. 2d 521 (Fla. 2d DCA 2007)…la. 4th DCA 2004), held that appellate counsel was ineffective for failing to argue on direct appeal that a circular burglary instruction almost identical to the one given in the present case was fundamental error. We note that in Freeman v. State, 787 So. 2d 152 (Fla. 4th DCA 2001), the court considered whether the exact instruction given in the present case rose to the level of fundamental error. The Freeman court held that it did not because, although the trial court instructed the jury that “at the time…
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Stone v. State, 899 So. 2d 421 (Fla. 5th DCA 2005)…ted with an intent to commit a crime or offense, including a burglary, in the dwelling. The jury was never correctly orally instructed on this essential element of burglary. It is this fact that distinguishes the instant case from Freeman v. State, 787 So. 2d 152 (Fla. 4th DCA 2001) and Giangrasso v. State, 793 So. 2d 71 (Fla. 4th DCA 2001). In Freeman, any error was deemed cured where the jury was incorrectly instructed that the defendant had to act with intent to commit the offense of burglary in the struc…
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Nicolo Giangrasso v. State, 793 So. 2d 71 (Fla. 4th DCA 2001)…re-instruet-ed. However, error, if any, as to this is fundamental and subject to review absent objection. Viveros, 699 So. 2d at 825; Puskac, 735 So. 2d at 523. We have considered Viveros and Puskac, and deem them inapposite. See Freeman v. State, 787 So. 2d 152 at 153 (Fla. 4th DCA 2001). The instruction in this case made it clear that for Giangrasso to be convicted, he must have entered or remained in Salin’s apartment with the intent to commit assault and/or battery.1 In Freeman, this court rejected the…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)
- Valentine v. State, 774 So. 2d 934 (Fla. 5th DCA 2001)
- Puskac v. State, 735 So. 2d 522 (Fla. 4th DCA 1999)