ANTHONY GERNELL BURT, 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.
Anthony Gernell Burt was convicted of attempted breaking and entering with intent to commit a misdemeanor and carrying a concealed firearm. The trial court sentenced him to five years on each count, but the appellate court held that because the jury was instructed the maximum penalty for the lesser included offense was two and a half years, Burt's sentence for that offense must be reduced to conform to the jury's understanding.
The court held that the jury's verdict on the lesser included offense was rendered with the understanding that the maximum penalty was two and a half years, and therefore the interests of justice require resentencing the appellant to two and a half years for that offense. The sentence for carrying a concealed firearm was affirmed.
[1] A jury instruction that misstates the maximum penalty for a lesser included offense may require resentencing when the jury's verdict is based on that erroneous instructio…
[2] A sentence imposed for a lesser included offense cannot exceed the maximum penalty stated to the jury for that 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“The crime of guilty of attempted breaking and entering with the intent to commit a misdemeanor, the penalty cannot exceed two and a half years in the state prison.”
The erroneous jury instruction regarding the maximum penalty for the lesser included offense that formed the basis for reversal of sentence.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBurt was charged with breaking and entering a dwelling with intent to commit a misdemeanor and carrying a concealed firearm. After a jury trial, he wa…
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 Breaking And Entering With Intent To Commit A Misdemeanor cases and more on FLexlaw
RAWLS, Acting Chief Judge.
By amended information, appellant was charged in Count I with breaking and entering a dwelling with intent to commit a misdemeanor and in Court II with carrying a concealed firearm.
After a jury trial, appellant was found guilty of the lesser included offense of attempted breaking and entering with intent to commit, a misdemeanor as to Count I, and guilty as charged as to Count II. The trial court imposed five year sentences on each count to run concurrently.
By way of this appeal, appellant contends that the trial judge erroneously instructed the jury on the potential penalty for attempted breaking and entering with intent to commit a misdemeanor. In his instructions, the trial judge stated: “The crime of guilty of attempted breaking and entering with the intent to commit a misdemeanor, the penalty cannot exceed two and a half years in the state prison.”1 However, upon the jury rendering a verdict of guilty of the lesser included offense of attempted breaking and entering with intent to commit a misdemeanor, the trial judge adjudicated appellant guilty of this crime and proceeded to sentence him to five years to run concurrently with a five year sentence imposed for carrying a concealed firearm.
Inasmuch as the jury settled on an offense which was a lesser degree of the one with which appellant was charged, and did so after having been informed by the trial court that the penalty therefore was imprisonment for a maximum of two and a half years, we hold that the interest of justice would best be served by resentencing appellant to two and a half years for the crime of attempted breaking and entering with intent to commit a misdemeanor. See Stern v. State, 296 So. 2d S49 (Fla.App.3rd 1974). The judgment and sentence as to carrying a concealed firearm are affirmed. The judgment as to attempted breaking and entering with intent to commit a misdemean-or is affirmed. The sentence as to attempted breaking and entering with intent to commit a misdemeanor is reversed and remanded with directions to the trial judge to amend the sentence for a period of two and a half years to run concurrently with the five year sentence imposed for carrying a concealed firearm. It will not be necessary for appellant to be present for resentencing.
Affirmed in part; reversed in part.
MILLS and SMITH, JJ., concur. . The maximum penalty for attempted breaking and entering with intent to commit a misdemeanor is five years.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Nappier v. State, 354 So. 2d 929 (Fla. 2d DCA 1978)…he jury on the maximum penalty for “strong-arm” robbery. Appellant urges that, because of this error, he is entitled to have his thirty-year sentence reduced to fifteen years, citing Bryant v. State, 334 So. 2d 160 (Fla. 2d DCA 1976); Burt v. State, 330 So. 2d 472 (Fla. 1st DCA 1976); and Stern v. State, 296 So. 2d 549 (Fla. 3d DCA 1974). We disagree and affirm. During his charge on the law, the trial judge, without objection, instructed the jury on the applicable penalty for the crime charged as follows: “…
-
Bryant v. State, 334 So. 2d 160 (Fla. 2d DCA 1976)…er offense of sale of heroin. We ordain, too, that it will not be necessary for appellant to be present at resentencing. GRIMES and SCHEB, JJ., concur. . Sections 893.13(1) (a) (1) and 775.082, F.S. 1975. . See Burt v. State (Fla.App. 1st, 1976), 330 So. 2d 472; Stern v. State (Fla.App. 3rd, 1974), 296 So. 2d 549.…