JOSE RIVERA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jose Rivera was convicted of burglary of a structure and petit theft after being caught stealing motorcycle tires from a fenced business yard. The appellate court reversed the burglary conviction due to a circular jury instruction that improperly required proof of intent to commit burglary rather than intent to commit any offense, but affirmed the theft conviction.
The court held that the jury instruction was erroneous and constituted fundamental error warranting reversal. The proper instruction must require the State to prove only that the defendant entered or remained in the structure with intent to commit an offense therein, not intent to commit burglary specifically.
[1] A jury instruction defining burglary as entering a structure with the intent to commit burglary is erroneous.
[2] A jury instruction that requires proof of intent to commit burglary, rather than intent to commit an offense therein, constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“Burglary is defined as entering or remaining in a structure with the intent to commit an offense therein.”
Establishes the legal definition of burglary under Florida law and the requirement that only general criminal intent is needed, not intent to commit a specific offense.
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Join FLexlaw to unlock all legal intelligenceRivera and a co-defendant were caught stealing motorcycle tires from a fenced yard of a business. Rivera was inside the yard holding a tire while his …
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COHEN, J.
Jose Rivera and a co-defendant were charged with burglary of a structure and grand theft, third-degree after they were caught stealing motorcycle tires from the fenced yard of a business. Rivera was inside the yard holding a tire, while his co-defendant was outside the fenced area with two stolen tires. According to the business’ general manager, two of the three tires had no value. The other tire was new and had an approximate value of IlSO.1 Rivera’s co-defendant testified that the two rode track bikes using “trash” tires collected from motorcycle businesses. They would plug the holes, use the tires (which would usually last 10-15 minutes), and, lacking any environmental sensitivity, burn them. The co-defendant explained their intention that night was to take only trash tires that had no value.
Two issues are presented for our consideration, only one of which merits discussion. We conclude that the jury instruction on the burglary charge warrants reversal. Burglary is defined as entering or remaining in a structure with the intent to commit an offense therein. § 810.02, Fla. Stat. (2006). The State is not required to allege in the information the specific offense intended to be committed, nor is the court required to instruct as to a specific offense. It is sufficient to instruct that the State has the burden to prove the commission of an offense therein. Toole v. State, 472 So. 2d 1174, 1175 (Fla.1985); Ellis v. State, 425 So. 2d 201, 202 (Fla. 5th DCA 1983). This conclusion is reinforced by the standard jury instruction which states that even if an unlawful entry is proven, the State must still establish that it was done with the intent to commit a crime therein.
In this case at bar, the trial court instructed the jury that it could find burglary if “the defendant had a fully formed, conscious intent to commit the offense of burglary in that structure.” This error was compounded when the court further instructed that “even though an unlawful entering or remaining is proved, if the evidence does not establish that it was done with an intent to commit burglary, the defendant must be found not guilty.”
The State properly concedes that giving such a circular instruction constituted error. Hillman v. State, 920 So. 2d 48, 50 (Fla. 5th DCA 2005); Stone v. State, 899 So. 2d 421, 422 (Fla. 5th DCA 2005); Lee v. State, 958 So. 2d 521, 522 (Fla. 2d DCA 2007); Viveros v. State, 699 So. 2d 822, 824 (Fla. 4th DCA 1997).2
We REVERSE Rivera’s conviction for burglary of a structure and REMAND for a new trial on that charge. We AFFIRM Rivera’s conviction for petit theft.
PALMER, C.J., and GRIFFIN, J., concur. . The trial court granted the defense motion for judgment of acquittal and reduced the grand theft charge to petit theft, greater than $100.
. Notwithstanding the lack of an objection, this instruction has been deemed fundamental. Stone v. State, 899 So. 2d 421, 423 (Fla. 5th DCA 2005); Viveros v. State, 699 So. 2d 822, 825 (Fla. 4th DCA 1997).
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Citator
Authorities Cited
- Toole v. State, 472 So. 2d 1174 (Fla. 1985)
- Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)
- Ellis v. State, 425 So. 2d 201 (Fla. 5th DCA 1983)
- LEE v. State, 958 So. 2d 521 (Fla. 2d DCA 2007)
- Stone v. State, 899 So. 2d 421 (Fla. 5th DCA 2005)
- Hillman v. State, 920 So. 2d 48 (Fla. 5th DCA 2005)