JOSEPH PICCIONI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Joseph Piccioni was convicted of burglary of a dwelling after the trial court refused to instruct the jury on the lesser-included offense of trespass. The appellate court reversed, holding that the trial court erred by denying the requested instruction where both statutory requirements were satisfied.
The trial court erred in refusing the requested instruction on trespass as a permissive lesser-included offense because both requirements were satisfied: the information alleged all statutory elements of trespass, and there was evidence adduced at trial establishing all elements. The failure to give the instruction constitutes reversible error per se because trespass is only one step removed from the charged offense of burglary.
[1] Trespass is a category two permissive lesser-included offense of burglary of a dwelling.
[2] A defendant is entitled to a jury instruction on a category two permissive lesser-included offense if the charging instrument alleges all of its statutory elements and th…
Previewing 2 of 5 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“Trespass is a category two permissive lesser-included offense of burglary of a dwelling.”
Establishes the legal classification of trespass in relation to burglary
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePiccioni was charged with burglary of a dwelling with intent to commit theft. At trial, evidence showed Piccioni's fingerprint was found on the kitche…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Statutory Elements Of Offenses cases and more on FLexlaw
STEVENSON, J.
Joseph Piccioni, the appellant, was charged with and convicted of burglary of a dwelling. At trial, Piccioni’s counsel asked that the court instruct the jury on the lesser-included offense of trespass. The judge refused and Piccioni now appeals that ruling. We find merit in Pic-cioni’s claim, reverse his conviction and remand for a new trial.
Trespass is a category two permissive lesser-included offense of burglary of a dwelling. See Henig v. State, 820 So. 2d 1037, 1039 (Fla. 4th DCA 2002); see also In re Standard Jury Instructions in Criminal Cases (97-2), 723 So. 2d 123, 131 (Fla.1998). When requested by the defendant, an instruction on a category two permissive lesser-included offense must be given where “(1) the information alleges all of the statutory elements of the permissive lesser-included offense, and (2) there is some evidence adduced at trial establishing all of the elements.” Wimberly v. State, 697 So. 2d 1272, 1273 (Fla. 4th DCA 1997); see also Amado v. State, 585 So. 2d 282, 282 (Fla.1991).
Both of these requirements were satisfied in the instant case. The amended information alleged that Piccioni “did unlawfully enter or remain in a structure, to wit: a dwelling, or the curtilage thereof, ..., property of Michael Hohlman, with intent to commit therein the offense of Theft....” In Henig v. State, this court held that similar language was sufficient to allege the statutory elements of trespass. See 820 So. 2d at 1038-39. There was also evidence at trial to establish a trespass as Piccioni’s fingerprint was found on the kitchen window screen and the victim testified that Piccioni did not have permission to be on the property or in his home. The fact that there was additional evidence suggesting that Piccioni was guilty of the greater crime is immaterial. See Gillespie v. State, 440 So. 2d 8, 10 (Fla. 1st DCA 1983)(“Even if the evidence is overwhelming that the defendant is guilty of the crime with which he is charged, the court must give a charge on a lesser included offense as to which there is any evidence.”); see also Amado, 585 So. 2d at 282-83 (holding that where defendant was charged with drug trafficking for possessing more than twenty-eight grams of cocaine, the fact that the evidence was overwhelming that quantity of drugs exceeded twenty-eight grams did not eliminate defendant’s entitlement to instruction on lesser-included offense of simple possession).
Since Piccioni was entitled to the instruction, the only question that remains is whether its absence from the trial requires reversal. The failure 'to instruct the jury on a permissive lesser-included offense can sometimes be harmless error. See Henig, 820 So. 2d at 1039. Where the absent lesser-included offense is only one step removed from the charged offense, however, the failure to give the requested instruction is reversible error per se. See State v. Abreau, 363 So. 2d 1063, 1064 (Fla.1978); Morris v. State, 658 So. 2d 155, 156 (Fla. 1st DCA 1995). The instant case falls into this latter category. Accordingly, we reverse Piccioni’s conviction for burglary of a dwelling and remand for a new trial.
REVERSED and REMANDED.
KLEIN and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
McKIVER v. State, 55 So. 3d 646 (Fla. 1st DCA 2011)…two, permissive lesser-included offense of burglary of a dwelling. In re Standard Jury Instructions in Criminal Cases-Report No. 2007-11, 986 So. 2d 563 (Fla.2008); see also Bordes v. State, 34 So. 3d 215, 217 (Fla. 4th DCA 2010); Piccioni v. State, 833 So. 2d 247, 248 (Fla. 4th DCA 2002). Therefore, the trial court was required to instruct the jury on trespass if the information alleged all of the statutory elements of trespass, and there was some evidence adduced at trial to establish those elements. See Cl…
-
Bordes v. State, 34 So. 3d 215 (Fla. 4th DCA 2010)…eges all of the statutory elements of the lesser offense, and the evidence at trial establishes each of the elements, it is error not to give the trespass instruction. See Henig v. State, 820 So. 2d 1037, 1039 (Fla. 4th DCA 2002); Piccioni v. State, 833 So. 2d 247, 248-49 (Fla. 4th DCA 2002). In both Henig and Piccioni we held that an information worded identically to the one in this case (save for the victim’s name) included all of the statutory elements of trespass. The evidence presented at trial covered…
-
Harris v. State, 935 So. 2d 1259 (Fla. 5th DCA 2006)…h DCA 1985), review denied, 482 So. 2d 347 (Fla.1986), and they consistently hold that failure to instruct the jury on a lesser-included offense can constitute reversible error per se when the issue is raised on direct appeal. See Piccioni v. State, 833 So. 2d 247 (Fla. 4th DCA 2002). In light of the facts, which would have supported a conviction for resisting an officer with violence, we do not believe it appropriate for Harris to now complain that the jury exercised its pardon power to convict him of his re…
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)
- Amado v. State, 585 So. 2d 282 (Fla. 1991)
- STANDARD JURY INSTRUCTIONS IN CRIM. CASES (97-2), 723 So. 2d 123 (Fla. 1998)
- Altha B. Gillespie v. State, 440 So. 2d 8 (Fla. 1st DCA 1983)
- Wimberly v. State, 697 So. 2d 1272 (Fla. 4th DCA 1997)
- Morris v. State, 658 So. 2d 155 (Fla. 1st DCA 1995)
- Dewitt v. State, 820 So. 2d 1037 (Fla. 5th DCA 2002)
- Seminole Cnty. v. Radosevich, 820 So. 2d 1037 (Fla. 5th DCA 2002)