WILLIAM R. MINOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Minor was convicted of trespass after warning based on a jury instruction for a lesser included offense, but the crime of trespass after warning was not alleged in the information charging him with entering without breaking. The court reversed, holding that a category (4) lesser offense instruction is improper unless the accusatory pleading alleges all essential elements of that offense.
A category (4) lesser included offense instruction is not appropriate unless the accusatory pleading alleges all of the essential elements of the lesser offense. The omission of the 'warning' element from the information made trespass after warning an improper lesser included offense instruction, and this fundamental error cannot be waived by failure to object at trial.
[1] A conviction for a lesser included offense is improper when the accusatory pleading does not allege all the essential elements of that lesser offense.
[2] A trespass after warning conviction cannot stand when the charging instrument fails to allege the essential element of warning.
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Join FLexlaw to unlock all legal intelligence“The defendants were convicted of a crime not charged in the informations. This is fundamental error.”
Establishes that conviction of an uncharged crime constitutes fundamental error not waivable by failure to object
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Join FLexlaw to unlock all legal intelligenceAppellant Minor was charged with entering without breaking a dwelling house with intent to commit assault. The trial court instructed the jury that th…
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GRIMES, Judge.
Appellant was charged with entering without breaking a dwelling house with intent to commit a misdemeanor, to wit: assault. The court instructed the jury that they might find appellant guilty of either entering without breaking or trespass after warning. The jury returned a verdict finding appellant guilty of trespass after warning as proscribed by Fla.Stat. § 821.01 (1973). Judgment and sentence were entered accordingly.
With respect to the crime of entering without breaking, the crime of trespass after warning is a lesser included offense of the type described as category (4) in Brown v. State, Fla.1968, 206 So. 2d 377. Trespass after warning may or may not be included in the crime of entering without breaking “depending upon the particular allegations of the accusatory pleading and the proofs tendered in support thereof.” Brown v. State, supra.
In State v. Anderson, Fla.1972, 270 So. 2d 353, the Supreme Court rejected the notion that a category (4) offense encompasses lesser offenses within the general scope of the charge made. The court noted that an instruction on a category (4) lesser offense was not appropriate unless the accusatory pleading alleges all of the essential elements of the lesser offense.
In the instant case, assuming that the state proved all the elements of the crime of trespass after warning, the essential element of warning was not alleged in the information. Hence, trespass after warning did not qualify as a lesser offense within category (4). In Evanco v. State, Fla.App.1st, 1975, 318 So. 2d 535, the court reached a similar conclusion when it reversed a conviction for trespass after warning on an information charging breaking and entering with intent to commit a misdemeanor, to wit: petit larceny.
The state’s primary argument in this case centers on the fact that no objection was made to the state’s requested instruction on trespass after warning. A similar contention has been rejected in three recent cases. Haley v. State, Fla. App.2d, 1975, 315 So. 2d 525; O’Neal v. State, Fla.App.2d, 1975, 308 So. 2d 569 (overruled on other grounds) ; Priester v. State, Fla.App.4th, 1974, 294 So. 2d 421. Thus, in Haley v. State, supra, this court said:
“The State argues that appellants waived this issue because the record fails to reveal a timely objection to the jury instructions. This case does not merely involve erroneous instructions. The defendants were convicted of a crime not charged in the informations. This is fundamental error. . . .”
The judgment is reversed with directions that appellant be discharged from the crime charged in the information.
McNULTY, C. J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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RAY v. State, 403 So. 2d 956 (Fla. 1981)…as not a permissible lesser included offense of the crime for which he was charged. Ray claims that convicting him of a crime not charged constitutes fundamental error which is per se reversible. To support this claim, Ray relies on Minor v. State, 329 So. 2d 30 (Fla.2d DCA 1976); Haley v. State, 315 So. 2d 525 (Fla.2d DCA 1975); O’Neal v. State, 308 So. 2d 569 (Fla.2d DCA), overruled in Roberts v. State, 320 So. 2d 832 (Fla.2d DCA 1975); Causey v. State, 307 So. 2d 197 (Fla.2d DCA 1975); and Johnson v. Sta…
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Silvestri v. State, 332 So. 2d 351 (Fla. 4th DCA 1976)…him guilty of a crime which no one could commit. . Of course, the defendant’s failure to object below to an instruction on a non-existent offense does not preclude our consideration of the issue, as fundamental error, on appeal. See Minor v. State, 329 So. 2d 30, 31 (Fla.App.2d 1976), and cases cited. . Ibid.…
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Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)…v. Dye, 346 So. 2d 538 (Fla.1977); Perkins v. Mayo, 92 So. 2d 641 (Fla.1957); LaRussa v. State, 142 Fla. 504, 196 So. 302 (1940); Penny v. State, 140 Fla. 155, 191 So. 190 (1939); State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980); Minor v. State, 329 So. 2d 30 (Fla. 2d DCA 1976); Haley v. State, 315 So. 2d 525 (Fla. 2d DCA 1975); O’Neal v. State, 308 So. 2d 569 (Fla. 2d DCA 1975), overruled in Roberts v. State, 320 So. 2d 832 (Fla. 2d DCA 1975); Causey v. State, 307 So. 2d 197 (Fla. 2d DCA 1975); Catanese…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Haley v. State, 315 So. 2d 525 (Fla. 2d DCA 1975)
- Bruno v. State, 270 So. 2d 353 (Fla. 1972)
- State v. Anderson, 270 So. 2d 353 (Fla. 1972)
- O'Neal v. State, 308 So. 2d 569 (Fla. 2d DCA 1975)
- Priester v. State, 294 So. 2d 421 (Fla. 4th DCA 1974)
- Evanco v. State, 318 So. 2d 535 (Fla. 1st DCA 1975)