LOU JOSEPH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lou Joseph appeals the summary denial of his rule 3.850 postconviction motion alleging ineffective assistance of counsel. The court affirmed, holding that counsel was not ineffective for failing to challenge the burglary conviction based on the jury's acquittal of the shooting charge, because the state need not prove the defendant intended to commit a specific offense to sustain a burglary conviction.
Trial counsel was not ineffective because the state need not prove that entry was made with intent to commit a specific offense; proof that the defendant entered with intent to commit some offense is sufficient for a burglary conviction. The jury's acquittal of the shooting charge did not establish that the state failed to prove the intent element, and judges need not instruct juries on the specific underlying offense intended.
[1] A burglary conviction requires proof that the defendant entered a dwelling with the intent to commit an offense therein, but the prosecution need not specify the exact of…
[2] Proof of entering a structure or conveyance stealthily and without consent is prima facie evidence of entering with intent to commit an offense.
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“There is no requirement that the state allege and prove that entry was made with the intent to commit a specific offense; however, even when it does so allege, so long as it also charges and proves 'the essential element of intent to commit an offense,' the specific allegation is considered surplusage.”
Establishes the legal standard that burglary requires only proof of intent to commit some offense, not a specific offense
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Join FLexlaw to unlock all legal intelligenceJoseph was charged with burglary of a dwelling while armed and shooting into a dwelling house. At trial, he was convicted of the lesser-included offen…
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PER CURIAM.
Lou Joseph (Defendant) appeals an order summarily denying his rule 3.850 motion for postconviction relief, and the order denying his motion for rehearing. We affirm, but write to address his first two grounds for relief.
Defendant was charged with (I) burglary of a dwelling while armed; and (II) shooting into a dwelling house. Following a jury trial, he was found guilty of the lesser-included offense of burglary of a dwelling as to count I and acquitted of count II.
Defendant alleged in his postconviction motion that his trial counsel was ineffective for failing to (1) file a motion, after the jury acquitted him of count II, to challenge his conviction of count I, such as a motion in arrest of judgment, based on the contention that the state had failed to prove the intent element necessary to convict him of burglary of a dwelling; and (2) object to a jury instruction which omitted to charge the jury that the underlying felony that formed the intent element was discharging a firearm into a dwelling.
Defendant’s first two grounds are based on his contention that count I of the charging information alleged that shooting into the dwelling-the offense charged in count II-was the specific offense which he had the intention of committing when he entered. On the contrary, while the information in count I alleged that he discharged a firearm while committing the burglary, it did not charge that he entered with the intention of committing that spe- cifíc offense.1
There is no requirement that the state allege and prove that entry was made with the intent to commit a specific offense; however, even when it does so allege, so long as it also charges and proves “the essential element of intent to commit an offense,” the specific allegation is considered surplusage. See Toole v. State, 472 So. 2d 1174, 1175 (Fla.1985). Thus, the fact that Defendant’s jury acquitted him of count II, committing the shooting offense, did not mean the state failed to prove the intent element of count I, so long as it proved he entered with the intention of committing some offense. See Duncan v. State, 606 So. 2d 1227 (Fla. 4th DCA 1992) (affirming conviction for attempted burglary of dwelling; prosecution need not specify in the charging document the specific offense intended by the perpetrator, and “proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense”) (quoting § 810.07(1), Fla. Stat.),2 rev. denied, 618 So. 2d 1367 (Fla.1993).
Nor must the judge instruct the jury on the underlying offense which the defendant intended to commit, Giangrasso v. State, 793 So. 2d 71, 73 (Fla. 4th DCA 2001), though the standard jury instruction is phrased to provide for doing so. “In many instances, the state does not know the exact offense intended by the defendant. In that case, absent section 810.07, the state could not take the case to a jury in the face of the Standard Jury Instruction.” Duncan, 606 So. 2d at 1229.
Affirmed.
WARNER, POLEN and HAZOURI, JJ., concur. . It charged that he:
did unlawfully, enter or remain in a dwelling, or the curtilage thereof, ... property of Charmaine Dawkins, with intent to commit an offense therein, and in the course thereof they were armed within such dwelling with a dangerous weapon, to-wit: a handgun/firearm, and in fact, Lou Joseph [Defendant] did discharge said firearm during the course of committing said Burglary and as a result of said discharge, great bodily harm was inflicted upon Luc Patrick ALEX-ANDRE, contrary to F.S. 810.02(1), F.S. 810.02(2) and F.S. 775.087(2)[.]
(Emphasis added).
. As for Defendant's contention that his alleged entry was anything but stealthy, we point out that gaming entry by deceit also supports a burglary conviction. Schrack v. State, 793 So. 2d 1102 (Fla. 4th DCA 2001).
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Abel Miranda v. State, 113 So. 3d 51 (Fla. 2d DCA 2013)…awfully entered the victim’s home; (2) at the time he did so, Miranda intended to commit an offense therein; and (3) Miranda assaulted the victim or Ms. Molina. See § 810.02(1), Fla. Stat. (2007); Fla. Std. Jury Instr. (Crim.) 13.1; Joseph v. State, 965 So. 2d 357, 358 (Fla. 4th DCA 2007). The crux of Miranda’s motion for judgment of acquittal below and his argument on appeal is that the State failed to establish the essential element of identity in each crime — that it was Miranda who caused the victim’s dea…
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Long v. State, 188 So. 3d 116 (Fla. 1st DCA 2016)…cessary. Toole v. State, 472 So. 2d 1174, 1175-76 (Fla.1985) (citing State v. Waters, 436 So. 2d 66 (Fla.1983) (holding that it is not necessary for an information charging burglary to allege the specific crime intended)); see also Joseph v. State, 965 So. 2d 357, 358 (Fla. 4th DCA 2007) (“There is no requirement that the state allege and prove that entry was made with the intent to commit a specific offense; however, even when it does so allege, so long as it also charges and proves “the essential element o…
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Von Young v. State, 266 So. 3d 1225 (Fla. 1st DCA 2019)
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Toole v. State, 472 So. 2d 1174 (Fla. 1985)
- Schrack v. State, 793 So. 2d 1102 (Fla. 4th DCA 2001)
- Nicolo Giangrasso v. State, 793 So. 2d 71 (Fla. 4th DCA 2001)
- Ward v. State, 606 So. 2d 1227 (Fla. 4th DCA 1992)
- Duncan v. State, 606 So. 2d 1227 (Fla. 4th DCA 1992)