NICOLO J. GIAN-GRASSO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Nicolo Gian-Grasso appeals the summary denial of his post-conviction ineffective assistance of counsel claim, challenging his conviction for burglary with battery. The court holds that trial counsel was potentially ineffective for failing to object when the trial judge instructed the jury that it could convict on only one of the two lesser-included offenses (trespass and battery), rather than permitting conviction on both component offenses.
The court holds that the trial court erred in summarily denying Gian-Grasso's ineffective assistance of counsel claim because the claim is sufficiently pleaded and not refuted by the record. A defendant is entitled to have the jury consider convicting on both separate component offenses of a compound offense such as burglary with a battery. Trial counsel may have been ineffective in failing to preserve this issue for appellate review.
[1] A defendant is entitled to have a jury consider convicting of the two separate component offenses of a compound offense such as burglary with a battery.
[2] A jury may be permitted to convict of the two separate component offenses of burglary with a battery when the information includes facts supporting convictions for both o…
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Join FLexlaw to unlock all legal intelligence“'Burglary with a battery' is a legislative combination of two separate common law crimes.”
Establishes that the compound offense can be broken down into component offenses, supporting the right to jury consideration of each component separately.
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Join FLexlaw to unlock all legal intelligenceGian-Grasso was convicted by jury of burglary with a battery. During deliberations, the jury asked whether it could convict of both trespass and batte…
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PER CURIAM.
Nicolo Gian-Grasso appeals the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. The motion raised several claims of ineffective assistance of counsel. We hold that the trial court’s summary denial of the motion was proper as to all but one of the claims. Gian-Grasso was convicted after jury trial of burglary with a battery. During jury deliberations, the jury sent the judge a note asking whether it could convict of both trespass and battery, which were listed individually as lesser-included offenses on the verdict form, or if they had to choose only one. The court instructed the jury that they could check only one box on the verdict form. Counsel agreed with the court’s decision.
Counsel’s failure to object meant the issue was not preserved for appellate review. Giangrasso v. State, 793 So. 2d 71, 73 (Fla. 4th DCA 2001). Gian-Grasso’s rule 3.850 motion claimed trial counsel was ineffective in not objecting to this issue.
We hold that the trial court erred in summarily denying this claim because the claim is sufficient and not refuted by the record. Nothing in the record indicates that counsel’s acquiescence was part of an “all-or-nothing” trial strategy. Davis v. State, 648 So. 2d 1249 (Fla. 4th DCA 1995).
A defendant is entitled to have a jury consider convicting of the two separate component offenses of a compound offense such as burglary with a battery. As explained in Bledsoe v. State, 764 So. 2d 927, 929 (Fla. 2d DCA 2000), “‘Burglary with a battery’ is a legislative combination of two separate common law crimes.” A judgment could be entered on both the lesser-included offenses of trespass and battery because the information included the facts necessary to support convictions for both offenses. Id.
Where a defendant is charged with burglary, a jury could find that the defendant had no criminal intent upon entering but subsequently formed the intent to commit an offense, such as, in this case, battery. In this situation, the defendant has committed a trespass and a battery but not a burglary. A defendant is entitled to have the jury determine when the intent was formed and consider the alternative of convicting of both component offenses, rather than burglary or just one of the component offenses.
The jury’s determination greatly affects the severity of the charge and punishment. “Burglary with a battery” is a first-degree felony punishable by life in prison. § 810.02(2), Fla. Stat. (1999). In contrast, trespass and simple battery are misdemeanors each punishable by no more than a year in jail.
We hold that under the circumstances presented here the jury should have been permitted to convict of the two separate component offenses.
Counsel may have been ineffective in fading to preserve this issue for appellate review. Accordingly, we reverse and remand for an evidentiary hearing limited to the issue discussed in this opinion. The trial court should determine whether counsel made a strategic decision to waive possible conviction of both lessers.
REVERSED AND REMANDED for an evidentiary hearing.
STEVENSON, SHAHOOD and HAZOURI, JJ., concur.
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Cited By (14 total)
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Gregory v. State, 937 So. 2d 180 (Fla. 4th DCA 2006)…of our reversal for failure to give the self-defense jury instruction. The defendant was entitled to an instruction and verdict form that would have permitted the jury to return a verdict of trespass coupled with a battery. See Gian-Grasso v. State, 899 So. 2d 392, 393 (Fla. 4th DCA 2005) (explaining that “a defendant is entitled to have a jury consider convicting him of the two separate component offenses of a compound offense such as burglary with a battery”). On retrial, if requested, the jury should be pe…
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In re Standard Jury Instructions IN Crim. Cases-Report NO. 2014-08, 176 So. 3d 938 (Fla. 2015)…ith a battery is charged and the jury convicts on the lesser included offense of trespass, the jury can also consider a second conviction on the lesser included offenses of assault or battery depending on the crime charged. See Gian-Grasso v. State, 899 So. 2d 392 (Fla. 4th DCA 2005). This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1997 [697 So. 2d 84], 2003 [850 So. 2d 1272], 2007 [962 So. 2d 310], 2008 [986 So. 2d 563], aad-2013 [109 So. 3d 721], and 2015. 14.9 EXPLOITATION OF […
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In re Standard Jury Instructions IN Crim. Cases-Report NO. 2012-01, 109 So. 3d 721 (Fla. 2013)…attery is charged and the jury convicts on the lesser included offense of trespass, the jury can also consider a second conviction on the lesser included offenses of assault or battery depending on the crime [*729] charged. See Gian-Grasso v. State, 899 So. 2d 392 (Fla. 4th DCA2005). This instruction was adopted in 1981 and amended in 1985 [477 So. 2d 985], 1997 [697 So. 2d 84], 2003 [850 So. 2d 1272], 2007 [962 So. 2d 310],and 2008 [986 So. 2d 563], and 2013. It should be given for offenses committed after…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Darrin L. Bledsoe v. State, 764 So. 2d 927 (Fla. 2d DCA 2000)
- Davis v. State, 648 So. 2d 1249 (Fla. 4th DCA 1995)
- Nicolo Giangrasso v. State, 793 So. 2d 71 (Fla. 4th DCA 2001)