BOOYAH Flashcards
The fact that the evidence is not clear whether the item used to stab the victim was a knife, screwdriver, or ice pick is not relevant when the evidence shows that the victim was stabbed with a metallic object that caused bleeding. The evidence is sufficient to show use of a weapon that caused serious bodily harm. // Price v. S., 932 So. 2d 1244 (3d DCA 2006), 31 F.L.W. D1882 (7/12/2006)
The fact that the evidence is not clear whether the item used to stab the victim was a knife, screwdriver, or ice pick is not relevant when the evidence shows that the victim was stabbed with a metallic object that caused bleeding. The evidence is sufficient to show use of a weapon that caused serious bodily harm. // Price v. S., 932 So. 2d 1244 (3d DCA 2006), 31 F.L.W. D1882 (7/12/2006)
Defendant cannot be convicted of both aggravated battery and kidnapping enhanced by the commission of an aggravated battery. // Ramierez v. S., 928 So. 2d 420 (3d DCA 2006), 31 F.L.W. D1143 (4/26/2006)
Defendant cannot be convicted of both aggravated battery and kidnapping enhanced by the commission of an aggravated battery. // Ramierez v. S., 928 So. 2d 420 (3d DCA 2006), 31 F.L.W. D1143 (4/26/2006)
Attempted aggravated battery with a firearm is a lesser of attempted 2d degree murder with a firearm, despite the fact that both carry a mandatory minimum 20 year sentence. // An allegation in the information that defendant discharged a firearm is a sufficient allegation of the use of a deadly weapon to permit the giving of attempted aggravated battery as a lesser. // Washington v. S., 912 So. 2d 344 (3d DCA 2005), 30 F.L.W. D2353 (10/5/2005)
Attempted aggravated battery with a firearm is a lesser of attempted 2d degree murder with a firearm, despite the fact that both carry a mandatory minimum 20 year sentence. // An allegation in the information that defendant discharged a firearm is a sufficient allegation of the use of a deadly weapon to permit the giving of attempted aggravated battery as a lesser. // Washington v. S., 912 So. 2d 344 (3d DCA 2005), 30 F.L.W. D2353 (10/5/2005)
Where defendant beats the victim’s head against a wall, he cannot be convicted of aggravated battery with a deadly weapon, because a wall is not a deadly weapon. // Defendant cannot be charged with two counts of battery for striking the victim against a wall and a car, all occurring in a single criminal episode. // Zapata v. S., 905 So. 2d 944 (3d DCA 2005), 30 F.L.W. D1572 (6/22/2005)
Where defendant beats the victim’s head against a wall, he cannot be convicted of aggravated battery with a deadly weapon, because a wall is not a deadly weapon. // Defendant cannot be charged with two counts of battery for striking the victim against a wall and a car, all occurring in a single criminal episode. // Zapata v. S., 905 So. 2d 944 (3d DCA 2005), 30 F.L.W. D1572 (6/22/2005)
In a BLEO case, the defense is entitled to inquire regarding prior allegations of use of excessive force by the police officer involved. However, where the court allows the defense to identify the complaints and indicate whether they were pending or resolved, the court does not err in refusing to allow the defense to go further. // DeLaPortilla v. S., 877 So. 2d 871 (3d DCA 2004), 29 F.L.W. D1637 (7/14/2004)
In a BLEO case, the defense is entitled to inquire regarding prior allegations of use of excessive force by the police officer involved. However, where the court allows the defense to identify the complaints and indicate whether they were pending or resolved, the court does not err in refusing to allow the defense to go further. // DeLaPortilla v. S., 877 So. 2d 871 (3d DCA 2004), 29 F.L.W. D1637 (7/14/2004)
Defendant’s act of spitting on a LEO, while constituting battery, does not constitute the “use or threat of the use of physical force or violence” and the crime thus is not a qualifying crime for violent career criminal sentencing. // Johnson v. S., 858 So. 2d 1071 (3d DCA 2003), 28 F.L.W. D2061 (9/3/2003)
Defendant’s act of spitting on a LEO, while constituting battery, does not constitute the “use or threat of the use of physical force or violence” and the crime thus is not a qualifying crime for violent career criminal sentencing. // Johnson v. S., 858 So. 2d 1071 (3d DCA 2003), 28 F.L.W. D2061 (9/3/2003)
Using a broomstick to beat the victim in such a way as to leave severe bruises and marks is sufficient to sustain a finding that the broomstick is used as a deadly weapon and used to cause great bodily harm. // A.L.M. v. S., 853 So. 2d 433 (3d DCA 2003), 28 F.L.W. D621 (3/5/2003)
Using a broomstick to beat the victim in such a way as to leave severe bruises and marks is sufficient to sustain a finding that the broomstick is used as a deadly weapon and used to cause great bodily harm. // A.L.M. v. S., 853 So. 2d 433 (3d DCA 2003), 28 F.L.W. D621 (3/5/2003)
The offense of aggravated battery can arise when defendant runs his car into another car if there is evidence that the persons inside the second car were injured, jostled, moved about in the vehicle, or had to brace themselves against an impending impact. Without that evidence, the court errs in refusing a JOA. // Rosa v. S., 847 So. 2d 495 (3d DCA 2003), 28 F.L.W. D219 (1/15/2003)
The offense of aggravated battery can arise when defendant runs his car into another car if there is evidence that the persons inside the second car were injured, jostled, moved about in the vehicle, or had to brace themselves against an impending impact. Without that evidence, the court errs in refusing a JOA. // Rosa v. S., 847 So. 2d 495 (3d DCA 2003), 28 F.L.W. D219 (1/15/2003)
Where defendant threw a traffic barricade at an LEO, causing the officer to fall resulting in a torn rotator cuff, the evidence is sufficient to establish aggravated battery by causing great bodily harm. // Perez v. S., 825 So. 2d 957 (3d DCA 2002), 27 F.L.W. D1310 (6/5/2002)
Where defendant threw a traffic barricade at an LEO, causing the officer to fall resulting in a torn rotator cuff, the evidence is sufficient to establish aggravated battery by causing great bodily harm. // Perez v. S., 825 So. 2d 957 (3d DCA 2002), 27 F.L.W. D1310 (6/5/2002)
Where there is no evidence that LEOs in a car rammed by defendant were shaken or moved about in their car, there is insufficient evidence under Clark v. S., 783 So. 2d 967 (Fla. 2001) to prove an aggravated battery. // V.A. v. S., 819 So. 2d 847 (3d DCA 2002), 27 F.L.W. D1196 (5/22/2002)
Where there is no evidence that LEOs in a car rammed by defendant were shaken or moved about in their car, there is insufficient evidence under Clark v. S., 783 So. 2d 967 (Fla. 2001) to prove an aggravated battery. // V.A. v. S., 819 So. 2d 847 (3d DCA 2002), 27 F.L.W. D1196 (5/22/2002)
Aggravated assault is not a lesser of aggravated battery, and the court errs in instructing on it upon the state’s request, unless the information includes all the elements of aggravated assault. // Negron v. S., 938 So. 2d 650 (4th DCA 2006), 31 F.L.W. D2528 (10/11/2006)
Aggravated assault is not a lesser of aggravated battery, and the court errs in instructing on it upon the state’s request, unless the information includes all the elements of aggravated assault. // Negron v. S., 938 So. 2d 650 (4th DCA 2006), 31 F.L.W. D2528 (10/11/2006)
Defendant is properly convicted of both manslaughter and aggravated battery for a beating of the victim that results in his death. // Terranova v. S., 937 So. 2d 286 (4th DCA 2006), 31 F.L.W. D2373 (9/13/2006)
Defendant is properly convicted of both manslaughter and aggravated battery for a beating of the victim that results in his death. // Terranova v. S., 937 So. 2d 286 (4th DCA 2006), 31 F.L.W. D2373 (9/13/2006)
A prior withhold of adjudication on a battery by a juvenile cannot constitute a predicate offense for enhancing a subsequent battery to a felony under § 784.03(1) and (2). // J.R.H. v. S., 932 So. 2d 430 (4th DCA 2006), 31 F.L.W. D1235 (5/3/2006)
A prior withhold of adjudication on a battery by a juvenile cannot constitute a predicate offense for enhancing a subsequent battery to a felony under § 784.03(1) and (2). // J.R.H. v. S., 932 So. 2d 430 (4th DCA 2006), 31 F.L.W. D1235 (5/3/2006)
A blowgun can be a deadly weapon when it is used to shoot two darts into the victim’s back even though there is no evidence establishing the weapon’s capacity to produce great bodily harm and only minimal injury was caused. // V.M.N. v. S., 909 So. 2d 953 (4th DCA 2005), 30 F.L.W. D2038 (8/31/2005)
A blowgun can be a deadly weapon when it is used to shoot two darts into the victim’s back even though there is no evidence establishing the weapon’s capacity to produce great bodily harm and only minimal injury was caused. // V.M.N. v. S., 909 So. 2d 953 (4th DCA 2005), 30 F.L.W. D2038 (8/31/2005)
There is no crime of attempted battery on school personnel. // W.T.D. v. S., 906 So. 2d 333 (4th DCA 2005), 30 F.L.W. D1661 (7/6/2005)
There is no crime of attempted battery on school personnel. // W.T.D. v. S., 906 So. 2d 333 (4th DCA 2005), 30 F.L.W. D1661 (7/6/2005)
Defendant may not be convicted of both battery and violation of a domestic violence injunction for the same conduct. // Doty v. S., 884 So. 2d 547 (4th DCA 2004), 29 F.L.W. D2468 (11/3/2004)
Defendant may not be convicted of both battery and violation of a domestic violence injunction for the same conduct. // Doty v. S., 884 So. 2d 547 (4th DCA 2004), 29 F.L.W. D2468 (11/3/2004)
Where defendant was flailing her arms after fighting with her brother and sister, resulting in striking her mother, the evidence is sufficient to show an intent to commit a battery. // S.D. v. S., 882 So. 2d 447 (4th DCA 2004), 29 F.L.W. D2017 (9/1/2004)
Where defendant was flailing her arms after fighting with her brother and sister, resulting in striking her mother, the evidence is sufficient to show an intent to commit a battery. // S.D. v. S., 882 So. 2d 447 (4th DCA 2004), 29 F.L.W. D2017 (9/1/2004)
Defendant is properly convicted of both robbery and battery for the same event. // Dunbar v. S., 879 So. 2d 98 (4th DCA 2004), 29 F.L.W. D1771 (8/4/2004)
Defendant is properly convicted of both robbery and battery for the same event. // Dunbar v. S., 879 So. 2d 98 (4th DCA 2004), 29 F.L.W. D1771 (8/4/2004)
A police officer chased defendant and knocked him down. The defendant hit the officer, and then bit him. Defendant was charged with both battery and aggravated battery on an LEO. Held: The two acts of touching or striking the officer occurred in a single transaction, and defendant cannot be convicted of two counts. // Clark v. S., 876 So. 2d 1259 (4th DCA 2004), 29 F.L.W. D1609 (7/7/2004)
A police officer chased defendant and knocked him down. The defendant hit the officer, and then bit him. Defendant was charged with both battery and aggravated battery on an LEO. Held: The two acts of touching or striking the officer occurred in a single transaction, and defendant cannot be convicted of two counts. // Clark v. S., 876 So. 2d 1259 (4th DCA 2004), 29 F.L.W. D1609 (7/7/2004)
Defendant cannot be convicted of both battery and sexual battery for events occurring in a single incident. // Herrera v. S., 879 So. 2d 38 (4th DCA 2004), 29 F.L.W. D1498 (6/23/2004)
Defendant cannot be convicted of both battery and sexual battery for events occurring in a single incident. // Herrera v. S., 879 So. 2d 38 (4th DCA 2004), 29 F.L.W. D1498 (6/23/2004)
Aggravated battery with a firearm is the same degree of crime as attempted second degree murder with a firearm, and so aggravated battery with a firearm is not a lesser of attempted murder. The court errs in giving the aggravated battery charge. // Franklin v. S., 877 So. 2d 19 (4th DCA 2004), 29 F.L.W. D1211 (5/19/2004)
Aggravated battery with a firearm is the same degree of crime as attempted second degree murder with a firearm, and so aggravated battery with a firearm is not a lesser of attempted murder. The court errs in giving the aggravated battery charge. // Franklin v. S., 877 So. 2d 19 (4th DCA 2004), 29 F.L.W. D1211 (5/19/2004)
Defendant cannot be convicted of multiple counts of battery when the acts all occur as part of a single transaction. // Judd v. S., 839 So. 2d 830 (4th DCA 2003), 28 F.L.W. D624 (3/5/2003)
Defendant cannot be convicted of multiple counts of battery when the acts all occur as part of a single transaction. // Judd v. S., 839 So. 2d 830 (4th DCA 2003), 28 F.L.W. D624 (3/5/2003)
Defendant hit the victim with a bicycle pump, and during the ensuing fight, he bit off the victim’s ear. He was charged with two counts of aggravated battery and convicted of simple battery for the pump incident and aggravated battery for the biting. Held: The batteries were part of a single continuous episode and will support only a single conviction. // Olivard v. S., 831 So. 2d 823 (4th DCA 2002), 27 F.L.W. D2630 (12/11/2002)
Defendant hit the victim with a bicycle pump, and during the ensuing fight, he bit off the victim’s ear. He was charged with two counts of aggravated battery and convicted of simple battery for the pump incident and aggravated battery for the biting. Held: The batteries were part of a single continuous episode and will support only a single conviction. // Olivard v. S., 831 So. 2d 823 (4th DCA 2002), 27 F.L.W. D2630 (12/11/2002)
Defendant cannot be convicted of battery based on evidence only that she threw an item that struck the victim. She must either intend to strike the victim or throw it in such a way that it was substantially certain that she would hit the victim (but see dissent). // C.B. v. S., 810 So. 2d 1072 (4th DCA 2002), 27 F.L.W. D658 (3/20/2002)
Defendant cannot be convicted of battery based on evidence only that she threw an item that struck the victim. She must either intend to strike the victim or throw it in such a way that it was substantially certain that she would hit the victim (but see dissent). // C.B. v. S., 810 So. 2d 1072 (4th DCA 2002), 27 F.L.W. D658 (3/20/2002)
Defendant is properly convicted of both attempted voluntary manslaughter and aggravated battery for the same general act. // Newell v. S., 935 So. 2d 83 (5th DCA 2006), 31 F.L.W. D2074 (8/4/2006)
Defendant is properly convicted of both attempted voluntary manslaughter and aggravated battery for the same general act. // Newell v. S., 935 So. 2d 83 (5th DCA 2006), 31 F.L.W. D2074 (8/4/2006)
Defendant was charged with aggravated battery of an LEO causing great bodily harm with a firearm. The use of the firearm was not an element of the crime, and the jury was instructed only on great bodily harm. Interrogatories on the verdict form made a special finding that defendant possessed a firearm, discharged the firearm, and inflicted great bodily harm on an LEO. Thus, the first-degree felony of aggravated battery on an LEO is reclassified for use of the firearm to a life felony, and as a PRR, the court is obligated to impose a life sentence. // While the court has discretion under the 10-20-Life law not to impose life when defendant injures a person with a firearm during a crime, it does not have discretion to refuse a life sentence when defendant qualifies as a PRR. // S. v. Robbins, 936 So. 2d 22 (5th DCA 2006), 31 F.L.W. D1716 (6/23/2006)
Defendant was charged with aggravated battery of an LEO causing great bodily harm with a firearm. The use of the firearm was not an element of the crime, and the jury was instructed only on great bodily harm. Interrogatories on the verdict form made a special finding that defendant possessed a firearm, discharged the firearm, and inflicted great bodily harm on an LEO. Thus, the first-degree felony of aggravated battery on an LEO is reclassified for use of the firearm to a life felony, and as a PRR, the court is obligated to impose a life sentence. // While the court has discretion under the 10-20-Life law not to impose life when defendant injures a person with a firearm during a crime, it does not have discretion to refuse a life sentence when defendant qualifies as a PRR. // S. v. Robbins, 936 So. 2d 22 (5th DCA 2006), 31 F.L.W. D1716 (6/23/2006)
There is no offense of attempted battery on an LEO. // J.S. v. S., 925 So. 2d 438 (5th DCA 2006), 31 F.L.W. D1002 (4/7/2006)
There is no offense of attempted battery on an LEO. // J.S. v. S., 925 So. 2d 438 (5th DCA 2006), 31 F.L.W. D1002 (4/7/2006)
When defendant’s only act was to separate two other people involved in a fight, the court errs in failing to grant a JOA. // K.W.S. v. S., 924 So. 2d 80 (5th DCA 2006), 31 F.L.W. D635 (2/24/2006)
When defendant’s only act was to separate two other people involved in a fight, the court errs in failing to grant a JOA. // K.W.S. v. S., 924 So. 2d 80 (5th DCA 2006), 31 F.L.W. D635 (2/24/2006)
Simple battery is a category II lesser of lewd battery. The lack of consent to the touching is legally presumed, and the fact that it is not alleged does not prevent the court from giving battery as a lesser. // Jackson v. S., 920 So. 2d 737 (5th DCA 2006), 31 F.L.W. D434 (2/10/2006)
Simple battery is a category II lesser of lewd battery. The lack of consent to the touching is legally presumed, and the fact that it is not alleged does not prevent the court from giving battery as a lesser. // Jackson v. S., 920 So. 2d 737 (5th DCA 2006), 31 F.L.W. D434 (2/10/2006)
The court properly allows the state to prove a prior battery at sentencing rather than at trial in reclassifying a misdemeanor battery to a felony under §748.03(2). // R.R. v. S., 920 So. 2d 146 (5th DCA 2006), 31 F.L.W. D361 (2/3/2006)
The court properly allows the state to prove a prior battery at sentencing rather than at trial in reclassifying a misdemeanor battery to a felony under §748.03(2). // R.R. v. S., 920 So. 2d 146 (5th DCA 2006), 31 F.L.W. D361 (2/3/2006)
Defendant is properly convicted of both attempted murder with a firearm and aggravated battery causing great bodily harm for a single act of shooting the victim. // Bradley v. S., 901 So. 2d 924 (5th DCA 2005), 30 F.L.W. D1052 (4/22/2005)
Defendant is properly convicted of both attempted murder with a firearm and aggravated battery causing great bodily harm for a single act of shooting the victim. // Bradley v. S., 901 So. 2d 924 (5th DCA 2005), 30 F.L.W. D1052 (4/22/2005)
Aggravated battery is a permissive lesser of second degree murder. The court errs in giving it, though, when all the element of aggravated battery are not alleged in the information. // When counsel does not object to giving aggravated battery as a lesser, the error is not preserved. // Whyte v. S., 881 So. 2d 1183 (5th DCA 2004), 29 F.L.W. D1974 (8/27/2004)
Aggravated battery is a permissive lesser of second degree murder. The court errs in giving it, though, when all the element of aggravated battery are not alleged in the information. // When counsel does not object to giving aggravated battery as a lesser, the error is not preserved. // Whyte v. S., 881 So. 2d 1183 (5th DCA 2004), 29 F.L.W. D1974 (8/27/2004)
Defendant may not be convicted of both simple battery and battery on an elderly person for the same criminal episode. // Anderson v. S., 877 So. 2d 958 (5th DCA 2004), 29 F.L.W. D1743 (7/30/2004)
Defendant may not be convicted of both simple battery and battery on an elderly person for the same criminal episode. // Anderson v. S., 877 So. 2d 958 (5th DCA 2004), 29 F.L.W. D1743 (7/30/2004)
The mandatory minimum sentence for aggravated BLEO created by session law 99-188 is unconstitutional due to a single subject violation. The reenactment of the mandatory in session law 2002-209 cannot apply retroactively. // (See this case for extensive discussion of the retroactive effect of reenacting a statute held unconstitutional. Also see this case for extensive discussion of the various rulings by Florida district courts regarding the constitutionality of session law 99-188.) // Jones v. S., 872 So. 2d 938 (5th DCA 2004), 29 F.L.W. D747 (3/26/2004) // see •Franklin v. S., ___ So. 2d ___, 29 F.L.W. S538 (Fla. 9/30/2004)
The mandatory minimum sentence for aggravated BLEO created by session law 99-188 is unconstitutional due to a single subject violation. The reenactment of the mandatory in session law 2002-209 cannot apply retroactively. // (See this case for extensive discussion of the retroactive effect of reenacting a statute held unconstitutional. Also see this case for extensive discussion of the various rulings by Florida district courts regarding the constitutionality of session law 99-188.) // Jones v. S., 872 So. 2d 938 (5th DCA 2004), 29 F.L.W. D747 (3/26/2004) // see •Franklin v. S., ___ So. 2d ___, 29 F.L.W. S538 (Fla. 9/30/2004)
Defendant is properly convicted of both attempted 2d degree murder and aggravated battery causing great bodily harm for a single incident. // Gutierrez v. S., 860 So. 2d 1042 (5th DCA 2003), 28 F.L.W. D2790 (12/5/2003)
Defendant is properly convicted of both attempted 2d degree murder and aggravated battery causing great bodily harm for a single incident. // Gutierrez v. S., 860 So. 2d 1042 (5th DCA 2003), 28 F.L.W. D2790 (12/5/2003)
Defendant is properly convicted of both aggravated battery on an LEO and resisting with violence for the same incident where she runs over an officer following her stop for a shoplifting offense. The offenses are not variants of the same offense. // Austin v. S., 852 So. 2d 898 (5th DCA 2003), 28 F.L.W. D1840 (8/8/2003)
Defendant is properly convicted of both aggravated battery on an LEO and resisting with violence for the same incident where she runs over an officer following her stop for a shoplifting offense. The offenses are not variants of the same offense. // Austin v. S., 852 So. 2d 898 (5th DCA 2003), 28 F.L.W. D1840 (8/8/2003)
A doctor is properly allowed to testify that the victim’s injuries were “severe” in an aggravated battery case. // Defining “great bodily harm” as “great harm as distinguished from slight, trivial, minor, or moderate harm and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery” is proper. // Chesnoff v. S., 840 So. 2d 423 (5th DCA 2003), 28 F.L.W. D780 (3/21/2003)
A doctor is properly allowed to testify that the victim’s injuries were “severe” in an aggravated battery case. // Defining “great bodily harm” as “great harm as distinguished from slight, trivial, minor, or moderate harm and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery” is proper. // Chesnoff v. S., 840 So. 2d 423 (5th DCA 2003), 28 F.L.W. D780 (3/21/2003)
Defendant is properly convicted of both attempted 2d degree murder and aggravated battery for a single act of stabbing the victim. // Schirmer v. S., 837 So. 2d 587 (5th DCA 2003), 28 F.L.W. D476 (2/14/2003)
Defendant is properly convicted of both attempted 2d degree murder and aggravated battery for a single act of stabbing the victim. // Schirmer v. S., 837 So. 2d 587 (5th DCA 2003), 28 F.L.W. D476 (2/14/2003)
Defendant cannot be convicted of both battery and violation of injunction under § 784.047 for the same act of battery. // Young v. S., 827 So. 2d 1075 (5th DCA 2002), 27 F.L.W. D2239 (10/11/2002)
Defendant cannot be convicted of both battery and violation of injunction under § 784.047 for the same act of battery. // Young v. S., 827 So. 2d 1075 (5th DCA 2002), 27 F.L.W. D2239 (10/11/2002)
Battery is not a lesser of kidnapping when the information fails to allege that defendant intentionally touched the victim. // Donovan v. S., 821 So. 2d 1099 (5th DCA 2002), 27 F.L.W. D1289 (5/31/2002)
Battery is not a lesser of kidnapping when the information fails to allege that defendant intentionally touched the victim. // Donovan v. S., 821 So. 2d 1099 (5th DCA 2002), 27 F.L.W. D1289 (5/31/2002)
When a crime can be charged in alternate ways (here, BLEO which can be charged by intentionally touching or striking, or by causing bodily harm) and the state chooses only one form and presents evidence going to only one form, it is not fundamental error to instruct the jury on both forms. Under State v. Delva, 575 So. 2d 643 (Fla. 1991), it is not fundamental error to omit an element about which there is no dispute. Similarly, it is not fundamental error to include an element about which there is no evidence or dispute. // S. v. Weaver, 957 So. 2d 586 (Fla. 2007), 32 F.L.W. S216 (5/10/2007) // reversing Weaver v. S., 916 So. 2d 895 (2d DCA 2005) // disapproving Vega v. S., 900 So. 2d 572 (2d DCA 2004) and Dixon v. S., 823 So. 2d 792 (2d DCA 2001)
When a crime can be charged in alternate ways (here, BLEO which can be charged by intentionally touching or striking, or by causing bodily harm) and the state chooses only one form and presents evidence going to only one form, it is not fundamental error to instruct the jury on both forms. Under State v. Delva, 575 So. 2d 643 (Fla. 1991), it is not fundamental error to omit an element about which there is no dispute. Similarly, it is not fundamental error to include an element about which there is no evidence or dispute. // S. v. Weaver, 957 So. 2d 586 (Fla. 2007), 32 F.L.W. S216 (5/10/2007) // reversing Weaver v. S., 916 So. 2d 895 (2d DCA 2005) // disapproving Vega v. S., 900 So. 2d 572 (2d DCA 2004) and Dixon v. S., 823 So. 2d 792 (2d DCA 2001)
Conviction for an uncharged crime is fundamental error. Where defendant is charged with aggravated battery with a deadly weapon, and the jury is instructed on aggravated battery with a deadly weapon and also by committing great bodily harm, and the jury finds aggravated battery with great bodily harm, the conviction is reversed and remanded for sentencing on simple battery. // When the jury is instructed on both types of battery and the jury returns a general verdict, the error is not fundamental because it is unclear whether the verdict is based on an uncharged crime. // (See this case for extensive discussion of fundamental error in the context of uncharged crimes.) // Jaimes v. S., 51 So. 3d 445 (Fla. 2010), 35 F.L.W. S710 (12/8/2010) // reversing in part Jaimes v. S., 19 So. 3d 347 (2d DCA 2009)
Conviction for an uncharged crime is fundamental error. Where defendant is charged with aggravated battery with a deadly weapon, and the jury is instructed on aggravated battery with a deadly weapon and also by committing great bodily harm, and the jury finds aggravated battery with great bodily harm, the conviction is reversed and remanded for sentencing on simple battery. // When the jury is instructed on both types of battery and the jury returns a general verdict, the error is not fundamental because it is unclear whether the verdict is based on an uncharged crime. // (See this case for extensive discussion of fundamental error in the context of uncharged crimes.) // Jaimes v. S., 51 So. 3d 445 (Fla. 2010), 35 F.L.W. S710 (12/8/2010) // reversing in part Jaimes v. S., 19 So. 3d 347 (2d DCA 2009)
Defendant can be prosecuted for felony battery after having been found guilty of contempt for violating a domestic violence restraining order. The elements of contempt and felony battery are different, and each contains an element to other does not. // S. v. Rothwell, 981 So. 2d 1279 (1st DCA 2008), 33 F.L.W. D1392 (5/27/2008)
Defendant can be prosecuted for felony battery after having been found guilty of contempt for violating a domestic violence restraining order. The elements of contempt and felony battery are different, and each contains an element to other does not. // S. v. Rothwell, 981 So. 2d 1279 (1st DCA 2008), 33 F.L.W. D1392 (5/27/2008)
When defendant is convicted of aggravated battery by causing great bodily harm, the 2d degree felony can be reclassified to a 1st degree felony for the use of a deadly weapon. When the conviction is for aggravated battery for using a weapon, the crime cannot be reclassified. // Hurry v. S., 978 So. 2d 854 (1st DCA 2008), 33 F.L.W. D956 (4/7/2008)
When defendant is convicted of aggravated battery by causing great bodily harm, the 2d degree felony can be reclassified to a 1st degree felony for the use of a deadly weapon. When the conviction is for aggravated battery for using a weapon, the crime cannot be reclassified. // Hurry v. S., 978 So. 2d 854 (1st DCA 2008), 33 F.L.W. D956 (4/7/2008)
Section 784.045 creates two forms of aggravated battery, the first focusing on the injury to the victim and the second on the type of weapon used. Where defendant is charged under §784.045(1)(a)1, and the information alleged “great bodily harm,” evidence going to permanent disability or permanent disfigurement is properly allowed. If defendant is unsure about how he is charged, he should request a statement of particulars. // Calloway v. S., 37 So. 3d 891 (1st DCA 2010), 35 F.L.W. D963 (4/29/2010)
Section 784.045 creates two forms of aggravated battery, the first focusing on the injury to the victim and the second on the type of weapon used. Where defendant is charged under §784.045(1)(a)1, and the information alleged “great bodily harm,” evidence going to permanent disability or permanent disfigurement is properly allowed. If defendant is unsure about how he is charged, he should request a statement of particulars. // Calloway v. S., 37 So. 3d 891 (1st DCA 2010), 35 F.L.W. D963 (4/29/2010)
Under the 1997 version of §784.08, a person convicted of aggravated battery of an elderly person cannot be sentenced as a habitual offender because that statute required that defendant be sentenced pursuant to the sentencing guidelines. While an upward departure under the guidelines is still a sentence entered “pursuant to the guidelines,” a habitualized sentence is not. // Williams v. S., 28 So. 3d 70 (1st DCA 2009), 34 F.L.W. D2520 (12/8/2009)
Under the 1997 version of §784.08, a person convicted of aggravated battery of an elderly person cannot be sentenced as a habitual offender because that statute required that defendant be sentenced pursuant to the sentencing guidelines. While an upward departure under the guidelines is still a sentence entered “pursuant to the guidelines,” a habitualized sentence is not. // Williams v. S., 28 So. 3d 70 (1st DCA 2009), 34 F.L.W. D2520 (12/8/2009)
Whether any particular item is a deadly weapon for aggravated battery purposes is a question of fact for the jury. // “Great bodily harm” is distinguished from slight, trivial, moderate harm and does not include mere bruises. // The jury properly determines that defendant committed aggravated battery by splashing household bleach into the victim’s face. // Smith v. S., 969 So. 2d 452 (1st DCA 2007), 32 F.L.W. D2717 (11/15/2007)
Whether any particular item is a deadly weapon for aggravated battery purposes is a question of fact for the jury. // “Great bodily harm” is distinguished from slight, trivial, moderate harm and does not include mere bruises. // The jury properly determines that defendant committed aggravated battery by splashing household bleach into the victim’s face. // Smith v. S., 969 So. 2d 452 (1st DCA 2007), 32 F.L.W. D2717 (11/15/2007)
A simple battery reclassified to a felony as a result of prior simple batteries will never qualify either for PRR sentencing or violent career criminal sentencing. // Johns v. S., 971 So. 2d 271 (1st DCA 2008), 33 F.L.W. D181 (1/7/2008)
A simple battery reclassified to a felony as a result of prior simple batteries will never qualify either for PRR sentencing or violent career criminal sentencing. // Johns v. S., 971 So. 2d 271 (1st DCA 2008), 33 F.L.W. D181 (1/7/2008)
Where the evidence does not show that the police chasing defendant had a reasonable suspicion that he had engaged in criminal activity, and does not show that they communicated an intent to arrest, the court errs in failing to grant a JOA in a case of resisting with violence and BLEO based on the failure to prove that the officers were engaged in the lawful execution of a legal duty. // Smith v. S., 993 So. 2d 981 (2d DCA 2007), 32 F.L.W. D2352 (9/28/2007)
Where the evidence does not show that the police chasing defendant had a reasonable suspicion that he had engaged in criminal activity, and does not show that they communicated an intent to arrest, the court errs in failing to grant a JOA in a case of resisting with violence and BLEO based on the failure to prove that the officers were engaged in the lawful execution of a legal duty. // Smith v. S., 993 So. 2d 981 (2d DCA 2007), 32 F.L.W. D2352 (9/28/2007)
Defendant was convicted of battery on an LEO, resisting with violence, and resisting without violence for an incident in which he shoved an officer, flailed his arms about, and then ran. Held: Because the running was part of a single incident of resisting, defendant cannot be convicted of both resisting with violence and resisting without violence. // Defendant is properly convicted of both BLEO and resisting with violence where he both shoves the officer and does other things as part of the offering to do violence to the officer. // Boyd v. S., 988 So. 2d 1242 (2d DCA 2008), 33 F.L.W. D2031 (8/22/2008)
Defendant was convicted of battery on an LEO, resisting with violence, and resisting without violence for an incident in which he shoved an officer, flailed his arms about, and then ran. Held: Because the running was part of a single incident of resisting, defendant cannot be convicted of both resisting with violence and resisting without violence. // Defendant is properly convicted of both BLEO and resisting with violence where he both shoves the officer and does other things as part of the offering to do violence to the officer. // Boyd v. S., 988 So. 2d 1242 (2d DCA 2008), 33 F.L.W. D2031 (8/22/2008)
Lewd battery is not a predicate offense for felony battery and cannot be used to transform a misdemeanor battery into a felony based on priors. Because lewd battery is not listed as a predicate under §784.03(2), it cannot be used as a predicate, regardless of the facts of the lewd battery. // Aldacosta v. S., 41 So. 3d 1096 (2d DCA 2010), 35 F.L.W. D1861 (8/18/2010)
Lewd battery is not a predicate offense for felony battery and cannot be used to transform a misdemeanor battery into a felony based on priors. Because lewd battery is not listed as a predicate under §784.03(2), it cannot be used as a predicate, regardless of the facts of the lewd battery. // Aldacosta v. S., 41 So. 3d 1096 (2d DCA 2010), 35 F.L.W. D1861 (8/18/2010)
Defendant was charged with burglary with a battery and sexual battery. He was convicted of burglary with a battery and simple battery as a lesser of sexual battery. Held: Under the circumstances conviction of those offense is a double jeopardy violation. // Avila v. S., 9 So. 3d 778 (2d DCA 2009), 34 F.L.W. D1138 (6/5/2009)
Defendant was charged with burglary with a battery and sexual battery. He was convicted of burglary with a battery and simple battery as a lesser of sexual battery. Held: Under the circumstances conviction of those offense is a double jeopardy violation. // Avila v. S., 9 So. 3d 778 (2d DCA 2009), 34 F.L.W. D1138 (6/5/2009)
When defendant is charged with aggravated battery with a deadly weapon, and the jury is instructed both on the deadly weapon and great bodily harm methods of committing the crime, and the evidence could sustain either version, but appellate counsel does not raise the issue, counsel is ineffective and the conviction is reversed. // When there is no dispute regarding the manner in which a crime was committed, the error in instructing regarding an uncharged theory can be harmless. However, when the evidence could support both the charged and uncharged method, the court errs in giving an instruction regarding the uncharged crime. // Sanders v. S., 959 So. 2d 1232 (2d DCA 2007), 32 F.L.W. D1569 (6/22/2007)
When defendant is charged with aggravated battery with a deadly weapon, and the jury is instructed both on the deadly weapon and great bodily harm methods of committing the crime, and the evidence could sustain either version, but appellate counsel does not raise the issue, counsel is ineffective and the conviction is reversed. // When there is no dispute regarding the manner in which a crime was committed, the error in instructing regarding an uncharged theory can be harmless. However, when the evidence could support both the charged and uncharged method, the court errs in giving an instruction regarding the uncharged crime. // Sanders v. S., 959 So. 2d 1232 (2d DCA 2007), 32 F.L.W. D1569 (6/22/2007)
A conviction for aggravated battery by causing great bodily harm, when the information charges aggravated battery with a deadly weapon, is not fundamental error when there is no objection and the issue of harm is not contested. // Jaimes v. S., 19 So. 3d 347 (2d DCA 2009), 34 F.L.W. D852 (4/29/2009)
A conviction for aggravated battery by causing great bodily harm, when the information charges aggravated battery with a deadly weapon, is not fundamental error when there is no objection and the issue of harm is not contested. // Jaimes v. S., 19 So. 3d 347 (2d DCA 2009), 34 F.L.W. D852 (4/29/2009)
Aggravated battery with a firearm is not subject to being reclassified to a first degree felony when the use of the firearm is an essential element of the crime. However, when the jury makes appropriate findings, the court properly imposes a mandatory minimum sentence under the 10-20-Life law. // Jacobs v. S., 954 So. 2d 1268 (2d DCA 2007), 32 F.L.W. D1122 (4/27/2007)
Aggravated battery with a firearm is not subject to being reclassified to a first degree felony when the use of the firearm is an essential element of the crime. However, when the jury makes appropriate findings, the court properly imposes a mandatory minimum sentence under the 10-20-Life law. // Jacobs v. S., 954 So. 2d 1268 (2d DCA 2007), 32 F.L.W. D1122 (4/27/2007)
Defendant failed to appear for a Marchman Act hearing, and the child’s parents called the police. An officer believed that a pickup order had been issued, and approached defendant to detain her. The child resisted, and was convicted of BLEO. Held: Because no pickup order had been issued, the officer was not in the lawful performance of a legal duty when he detained her, and the court errs in finding her guilty of BLEO. // C.B. v. S., 979 So. 2d 391 (2d DCA 2008), 33 F.L.W. D1080 (4/18/2008)
Defendant failed to appear for a Marchman Act hearing, and the child’s parents called the police. An officer believed that a pickup order had been issued, and approached defendant to detain her. The child resisted, and was convicted of BLEO. Held: Because no pickup order had been issued, the officer was not in the lawful performance of a legal duty when he detained her, and the court errs in finding her guilty of BLEO. // C.B. v. S., 979 So. 2d 391 (2d DCA 2008), 33 F.L.W. D1080 (4/18/2008)
Defendant was charged with aggravated battery by causing great bodily harm, by discharging a firearm. He was convicted as charged and the court reclassified the offense to an F1 and sentenced defendant to 30 years with a 25-year mandatory minimum. The verdict form gave the options, “guilty of aggravated battery with a firearm (Discharging firearm and inflicting great bodily harm) as charged; guilty of Aggravated Battery with a Firearm (Discharging a Firearm); and other lessers, and the jury checked the first box. Held: By describing the crime as “Aggravated battery with a firearm,” the verdict had the effect of making the use of a firearm an element of the crime, which prohibits reclassification to an F1 (but see dissent). // Webb v. S., 997 So. 2d 469 (2d DCA 2008), 33 F.L.W. D2837 (12/12/2008)
Defendant was charged with aggravated battery by causing great bodily harm, by discharging a firearm. He was convicted as charged and the court reclassified the offense to an F1 and sentenced defendant to 30 years with a 25-year mandatory minimum. The verdict form gave the options, “guilty of aggravated battery with a firearm (Discharging firearm and inflicting great bodily harm) as charged; guilty of Aggravated Battery with a Firearm (Discharging a Firearm); and other lessers, and the jury checked the first box. Held: By describing the crime as “Aggravated battery with a firearm,” the verdict had the effect of making the use of a firearm an element of the crime, which prohibits reclassification to an F1 (but see dissent). // Webb v. S., 997 So. 2d 469 (2d DCA 2008), 33 F.L.W. D2837 (12/12/2008)
Omitting the words “intentionally and knowingly” from the second element of the jury instructions for aggravated BLEO is harmful fundamental error. Appellate counsel is ineffective for failing to argue that error. // Wilfork v. S., 992 So. 2d 907 (2d DCA 2008), 33 F.L.W. D2504 (10/24/2008)
Omitting the words “intentionally and knowingly” from the second element of the jury instructions for aggravated BLEO is harmful fundamental error. Appellate counsel is ineffective for failing to argue that error. // Wilfork v. S., 992 So. 2d 907 (2d DCA 2008), 33 F.L.W. D2504 (10/24/2008)
Defendant cannot be sentenced as a habitual violent felony offender for a conviction for aggravated battery on an elderly person under §784.08(1) (1995) because the battery statute requires sentencing under the guidelines. // Wright v. S., 992 So. 2d 911 (2d DCA 2008), 33 F.L.W. D2508 (10/24/2008)
Defendant cannot be sentenced as a habitual violent felony offender for a conviction for aggravated battery on an elderly person under §784.08(1) (1995) because the battery statute requires sentencing under the guidelines. // Wright v. S., 992 So. 2d 911 (2d DCA 2008), 33 F.L.W. D2508 (10/24/2008)
The state must prove specific intent to cause great bodily harm to prove aggravated battery. When the state proves only a general intent to commit a battery, and the result is great bodily harm, the defendant must be convicted of felony battery rather than aggravated battery. // T.S. v. S., 965 So. 2d 1288 (2d DCA 2007), 32 F.L.W. D2507 (10/19/2007)
The state must prove specific intent to cause great bodily harm to prove aggravated battery. When the state proves only a general intent to commit a battery, and the result is great bodily harm, the defendant must be convicted of felony battery rather than aggravated battery. // T.S. v. S., 965 So. 2d 1288 (2d DCA 2007), 32 F.L.W. D2507 (10/19/2007)
A school resource officer is performing a legal duty when he tries to calm a disturbance at school, and the child is properly convicted of BLEO when she batters the officer. // Performing a legal duty is an element of BLEO // L.R. v. S., 948 So. 2d 827 (2d DCA 2007), 32 F.L.W. D256 (1/19/2007)
A school resource officer is performing a legal duty when he tries to calm a disturbance at school, and the child is properly convicted of BLEO when she batters the officer. // Performing a legal duty is an element of BLEO // L.R. v. S., 948 So. 2d 827 (2d DCA 2007), 32 F.L.W. D256 (1/19/2007)
The court errs in giving a jury instruction on battery that includes both “intentionally touching or striking” the victim, and “causing bodily harm to the victim,” when the information charges only touching or striking. // The error is not fundamental when the state does not rely on the erroneous charge and does not argue it in closing, and the defendant admitting the striking the victim. // Defendant was charged with battery evidencing prejudice, and the evidence showed that he got into a fight with a black man in a convenience store after he called the victim a “nigger.” After his arrest, the defendant was placed in a patrol car and he called the arresting officer, who was black, a “nigger.” the officer testified to that fact at trial. Held: Because the charge was a hate crime, evidence of defendant’s motive was relevant. Defendant’s actions and comments immediately following the incident was relevant to show his motivation for committing the crime. // Jomolla v. S., 990 So. 2d 1234 (3d DCA 2008), 33 F.L.W. D2268 (9/24/2008)
The court errs in giving a jury instruction on battery that includes both “intentionally touching or striking” the victim, and “causing bodily harm to the victim,” when the information charges only touching or striking. // The error is not fundamental when the state does not rely on the erroneous charge and does not argue it in closing, and the defendant admitting the striking the victim. // Defendant was charged with battery evidencing prejudice, and the evidence showed that he got into a fight with a black man in a convenience store after he called the victim a “nigger.” After his arrest, the defendant was placed in a patrol car and he called the arresting officer, who was black, a “nigger.” the officer testified to that fact at trial. Held: Because the charge was a hate crime, evidence of defendant’s motive was relevant. Defendant’s actions and comments immediately following the incident was relevant to show his motivation for committing the crime. // Jomolla v. S., 990 So. 2d 1234 (3d DCA 2008), 33 F.L.W. D2268 (9/24/2008)
A firearm as a matter of law is a deadly weapon. Where the firearm is used to strike the victim, the offense constitutes aggravated battery because the defendant used a deadly weapon to strike the victim. The fact that the weapon was not used in a manner likely to cause death or grate bodily harm does not control. // S. v. Williams, 10 So. 3d 1172 (3d DCA 2009), 34 F.L.W. D1068 (5/27/2009)
A firearm as a matter of law is a deadly weapon. Where the firearm is used to strike the victim, the offense constitutes aggravated battery because the defendant used a deadly weapon to strike the victim. The fact that the weapon was not used in a manner likely to cause death or grate bodily harm does not control. // S. v. Williams, 10 So. 3d 1172 (3d DCA 2009), 34 F.L.W. D1068 (5/27/2009)
LEOs in an unmarked truck with dark tinted windows were conducting drug surveillance. Defendant juvenile and a friend walked up to the truck and looked in, but did not try to enter the truck. LEO tried to stop the child and he left the scene. When the officer confronted him later, the child pushed him and ran away. Held: The evidence is insufficient to show that the officer was engaged in the lawful performance of his duties to sustain a BLEO charge. // K.H. v. S., 8 So. 3d 1155 (3d DCA 2009), 34 F.L.W. D739 (4/8/2009)
LEOs in an unmarked truck with dark tinted windows were conducting drug surveillance. Defendant juvenile and a friend walked up to the truck and looked in, but did not try to enter the truck. LEO tried to stop the child and he left the scene. When the officer confronted him later, the child pushed him and ran away. Held: The evidence is insufficient to show that the officer was engaged in the lawful performance of his duties to sustain a BLEO charge. // K.H. v. S., 8 So. 3d 1155 (3d DCA 2009), 34 F.L.W. D739 (4/8/2009)
BLEO cannot serve as a predicate offense for either PRR sentencing or violent career criminal sentencing. // Acosta v. S., 982 So. 2d 87 (3d DCA 2008), 33 F.L.W. D1223 (4/30/2008)
BLEO cannot serve as a predicate offense for either PRR sentencing or violent career criminal sentencing. // Acosta v. S., 982 So. 2d 87 (3d DCA 2008), 33 F.L.W. D1223 (4/30/2008)
Aggravated battery is a 2d degree felony that can be reclassified for use of a firearm so long as use of a firearm is not an essential element. Aggravated battery can be committed by causing great bodily harm, or by use of a deadly weapon. Where the information charges only great bodily harm aggravated battery, but the prosecutor and court mix up the two forms and the instructions and verdict forms are not clear about the types, the court errs in reclassifying the charge. // The failure to object to an improper reclassification is ineffective assistance of counsel. // Hernandez v. S., 30 So. 3d 610 (3d DCA 2010), 35 F.L.W. D570 (3/10/2010)
Aggravated battery is a 2d degree felony that can be reclassified for use of a firearm so long as use of a firearm is not an essential element. Aggravated battery can be committed by causing great bodily harm, or by use of a deadly weapon. Where the information charges only great bodily harm aggravated battery, but the prosecutor and court mix up the two forms and the instructions and verdict forms are not clear about the types, the court errs in reclassifying the charge. // The failure to object to an improper reclassification is ineffective assistance of counsel. // Hernandez v. S., 30 So. 3d 610 (3d DCA 2010), 35 F.L.W. D570 (3/10/2010)
Defendant and victim got in a fight, and the victim died. Defendant was charged with second degree murder, which was JOA’d to manslaughter after the state’s case. The court instructed on aggravated battery as a lesser, and the jury convicted on that charge. Held: An allegation that defendant killed the victim sufficiently alleges that he caused great bodily harm to support an aggravated battery conviction as a lesser of manslaughter. // Lester v. S., 25 So. 3d 623 (3d DCA 2009), 35 F.L.W. D22 (12/23/2009)
Defendant and victim got in a fight, and the victim died. Defendant was charged with second degree murder, which was JOA’d to manslaughter after the state’s case. The court instructed on aggravated battery as a lesser, and the jury convicted on that charge. Held: An allegation that defendant killed the victim sufficiently alleges that he caused great bodily harm to support an aggravated battery conviction as a lesser of manslaughter. // Lester v. S., 25 So. 3d 623 (3d DCA 2009), 35 F.L.W. D22 (12/23/2009)
When sentencing a youthful offender for battery on an elderly person, the court is authorized to withhold adjudication. While section 784.08(3) requires an adjudication, section 958.04(2)(a) allows the court to withhold. The youthful offender provision prevails over the battery section. // S. v. Blackburn, 965 So. 2d 231 (4th DCA 2007), 32 F.L.W. D2126 (9/5/2007)
When sentencing a youthful offender for battery on an elderly person, the court is authorized to withhold adjudication. While section 784.08(3) requires an adjudication, section 958.04(2)(a) allows the court to withhold. The youthful offender provision prevails over the battery section. // S. v. Blackburn, 965 So. 2d 231 (4th DCA 2007), 32 F.L.W. D2126 (9/5/2007)
Defendant cannot be convicted of burglary with an aggravated battery, robbery with an aggravated battery, and aggravated battery for the same incident involving a single aggravated battery. The aggravated battery conviction violates double jeopardy rules. // Finkley v. S., 16 So. 3d 329 (4th DCA 2009), 34 F.L.W. D1890 (9/16/2009)
Defendant cannot be convicted of burglary with an aggravated battery, robbery with an aggravated battery, and aggravated battery for the same incident involving a single aggravated battery. The aggravated battery conviction violates double jeopardy rules. // Finkley v. S., 16 So. 3d 329 (4th DCA 2009), 34 F.L.W. D1890 (9/16/2009)
Defendant was charged with felony battery based on prior convictions. Using the bifurcation rule of S. v. Harbaugh, 754 So. 2d 691 (Fla. 2000), the jury determined that he was guilty of simple battery. The jury then was presented evidence regarding his priors, and was unable to reach a verdict. The jury was discharged, and the state asked to empanel a new jury. The court disagreed, and adjudicated him guilty of misdemeanor battery. Held: The jury’s verdict and the court’s adjudication represented an acquittal on the felony battery charges, and he cannot be retried. It is improper for separate juries to determine separate elements of a felony battery charge. // Warthen v. S., 988 So. 2d 154 (4th DCA 2008), 33 F.L.W. D1915 (8/6/2008)
Defendant was charged with felony battery based on prior convictions. Using the bifurcation rule of S. v. Harbaugh, 754 So. 2d 691 (Fla. 2000), the jury determined that he was guilty of simple battery. The jury then was presented evidence regarding his priors, and was unable to reach a verdict. The jury was discharged, and the state asked to empanel a new jury. The court disagreed, and adjudicated him guilty of misdemeanor battery. Held: The jury’s verdict and the court’s adjudication represented an acquittal on the felony battery charges, and he cannot be retried. It is improper for separate juries to determine separate elements of a felony battery charge. // Warthen v. S., 988 So. 2d 154 (4th DCA 2008), 33 F.L.W. D1915 (8/6/2008)
No fundamental error occurs when the court instructs that jury that the arresting officer in a BLEO case was a law enforcement officer, when the evidence presented at trial showed no dispute on the issue whether the victim was an LEO. // Defendant cannot be sentenced as a PRR for BLEO. // Dennis v. S., 980 So. 2d 1279 (4th DCA 2008), 33 F.L.W. D1312 (5/14/2008)
No fundamental error occurs when the court instructs that jury that the arresting officer in a BLEO case was a law enforcement officer, when the evidence presented at trial showed no dispute on the issue whether the victim was an LEO. // Defendant cannot be sentenced as a PRR for BLEO. // Dennis v. S., 980 So. 2d 1279 (4th DCA 2008), 33 F.L.W. D1312 (5/14/2008)
(See Haliburton v. S., 7 So. 3d 601 (4th DCA 2009), 34 F.L.W. D682 (4/1/2009) for discussion of which offenses are lessers in a charge of aggravated battery with a firearm and by causing great bodily harm.)
(See Haliburton v. S., 7 So. 3d 601 (4th DCA 2009), 34 F.L.W. D682 (4/1/2009) for discussion of which offenses are lessers in a charge of aggravated battery with a firearm and by causing great bodily harm.)
Felony battery causing great bodily harm can qualify as a predicate offense for PRR sentencing under the proper circumstances. // (See this case for the distinction between felony battery under §784.041, which can qualify for PRR sentencing, and simple battery enhanced to a felony under §784.03(3), which does not.) // S. v. Williams, 9 So. 3d 658 (4th DCA 2009), 34 F.L.W. D685 (4/1/2009)
Felony battery causing great bodily harm can qualify as a predicate offense for PRR sentencing under the proper circumstances. // (See this case for the distinction between felony battery under §784.041, which can qualify for PRR sentencing, and simple battery enhanced to a felony under §784.03(3), which does not.) // S. v. Williams, 9 So. 3d 658 (4th DCA 2009), 34 F.L.W. D685 (4/1/2009)
Under §784.045(1)(a), to commit aggravated battery with a deadly weapon, the statute does not require that the deadly weapon actually touch the victim. The plain meaning of the statute is that if a deadly weapon is used in any manner in committing the battery, the offense becomes aggravated battery. Thus, holding a deadly weapon while unlawfully touching the victim constitutes aggravated battery. // •Severance v. S., 972 So. 2d 931 (4th DCA 2007), 32 F.L.W. D2938 (12/13/2007) // en banc, receding from Munoz-Perez v. S., 942 So. 2d 1025 (4th DCA 2006)
Under §784.045(1)(a), to commit aggravated battery with a deadly weapon, the statute does not require that the deadly weapon actually touch the victim. The plain meaning of the statute is that if a deadly weapon is used in any manner in committing the battery, the offense becomes aggravated battery. Thus, holding a deadly weapon while unlawfully touching the victim constitutes aggravated battery. // •Severance v. S., 972 So. 2d 931 (4th DCA 2007), 32 F.L.W. D2938 (12/13/2007) // en banc, receding from Munoz-Perez v. S., 942 So. 2d 1025 (4th DCA 2006)
No error occurs in allowing the jury to convict defendant of burglary with an assault without making a specific finding whether defendant committed an assault or a battery during the burglary. Since the statute can be violated with either offense, there is no need to make a specific finding. // Gorham v. S., 993 So. 2d 128 (4th DCA 2008), 33 F.L.W. D2466 (10/22/2008)
No error occurs in allowing the jury to convict defendant of burglary with an assault without making a specific finding whether defendant committed an assault or a battery during the burglary. Since the statute can be violated with either offense, there is no need to make a specific finding. // Gorham v. S., 993 So. 2d 128 (4th DCA 2008), 33 F.L.W. D2466 (10/22/2008)
A simple battery upgraded to felony battery due to a prior conviction under §784.03(2) is not a crime of physical force or violence such that it will allow PRR sentencing. // Spradlin v. S., 967 So. 2d 376 (4th DCA 2007), 32 F.L.W. D2486 (10/17/2007)
A simple battery upgraded to felony battery due to a prior conviction under §784.03(2) is not a crime of physical force or violence such that it will allow PRR sentencing. // Spradlin v. S., 967 So. 2d 376 (4th DCA 2007), 32 F.L.W. D2486 (10/17/2007)
Defendant may not be convicted of both burglary with an assault, and battery, for a single incident when the information does not allege whether defendant was charged with burglary with an assault, burglary with a battery, or both. // Young v. S., 43 So. 3d 876 (5th DCA 2010), 35 F.L.W. D1984 (9/3/2010)
Defendant may not be convicted of both burglary with an assault, and battery, for a single incident when the information does not allege whether defendant was charged with burglary with an assault, burglary with a battery, or both. // Young v. S., 43 So. 3d 876 (5th DCA 2010), 35 F.L.W. D1984 (9/3/2010)
Defendant can be convicted of both robbery and battery for the same incident. // Defendant waives a double jeopardy argument by entering a guilty plea, unless the plea is a general plea, the double jeopardy violation is apparent on the record, and there is nothing in the record to show that the claim was waived. // T.C.E. v. S., 965 So. 2d 338 (5th DCA 2007), 32 F.L.W. D2279 (9/21/2007)
Defendant can be convicted of both robbery and battery for the same incident. // Defendant waives a double jeopardy argument by entering a guilty plea, unless the plea is a general plea, the double jeopardy violation is apparent on the record, and there is nothing in the record to show that the claim was waived. // T.C.E. v. S., 965 So. 2d 338 (5th DCA 2007), 32 F.L.W. D2279 (9/21/2007)
Defendant was charged with battery on a pregnant person, and the state included an allegation of a proper battery conviction. He was convicted of simple battery, and the state then presented evidence to the jury of the prior, and the court enhanced the simple battery to a felony. Held: Because the state included the allegation of the prior, the defendant is properly convicted of felony battery. // Cox v. S., 988 So. 2d 1236 (5th DCA 2008), 33 F.L.W. D2032 (8/22/2008)
Defendant was charged with battery on a pregnant person, and the state included an allegation of a proper battery conviction. He was convicted of simple battery, and the state then presented evidence to the jury of the prior, and the court enhanced the simple battery to a felony. Held: Because the state included the allegation of the prior, the defendant is properly convicted of felony battery. // Cox v. S., 988 So. 2d 1236 (5th DCA 2008), 33 F.L.W. D2032 (8/22/2008)
Lack of consent to being touched can be established in a battery case by circumstantial evidence. Thus, where several witnesses saw the victim being hit and punched by the defendant, that evidence is admissible to show lack of consent. // S. v. Clyatt, 976 So. 2d 1182 (5th DCA 2008), 33 F.L.W. D820 (3/20/2008)
Lack of consent to being touched can be established in a battery case by circumstantial evidence. Thus, where several witnesses saw the victim being hit and punched by the defendant, that evidence is admissible to show lack of consent. // S. v. Clyatt, 976 So. 2d 1182 (5th DCA 2008), 33 F.L.W. D820 (3/20/2008)
Where the information charges aggravated battery by causing great bodily harm to the victim, and the court instructs only on aggravated battery by use of a deadly weapon, the error is fundamental and the conviction is reversed. // Reddick v. S., ___ So. 3d ___, 36 F.L.W. D532 (5th DCA 3/11/2011)
Where the information charges aggravated battery by causing great bodily harm to the victim, and the court instructs only on aggravated battery by use of a deadly weapon, the error is fundamental and the conviction is reversed. // Reddick v. S., ___ So. 3d ___, 36 F.L.W. D532 (5th DCA 3/11/2011)
While attempting to throw a stapler at another child, the defendant instead hit a teacher. He was charged with battery on a school employee. Held: Transferred intent is not applicable to enhance the severity of a crime against an unintended victim. the defendant could be found guilty of battery only. // S.G. v. S., 29 So. 3d 383 (5th DCA 2010), 35 F.L.W. D483 (2/26/2010)
While attempting to throw a stapler at another child, the defendant instead hit a teacher. He was charged with battery on a school employee. Held: Transferred intent is not applicable to enhance the severity of a crime against an unintended victim. the defendant could be found guilty of battery only. // S.G. v. S., 29 So. 3d 383 (5th DCA 2010), 35 F.L.W. D483 (2/26/2010)
Under section 784.07(2)(d), a person convicted of aggravated battery on an LEO must be sentenced to a 5-year mandatory minimum. The court is not permitted to impose a downward departure. However, the court may avoid the mandatory by imposing a youthful offender sentence. // S. v. Gretz, 972 So. 2d 212 (5th DCA 2007), 32 F.L.W. D2844 (11/30/2007)
Under section 784.07(2)(d), a person convicted of aggravated battery on an LEO must be sentenced to a 5-year mandatory minimum. The court is not permitted to impose a downward departure. However, the court may avoid the mandatory by imposing a youthful offender sentence. // S. v. Gretz, 972 So. 2d 212 (5th DCA 2007), 32 F.L.W. D2844 (11/30/2007)
A wrench can constitute a deadly weapon for aggravated battery purposes when it is used in s manner likely to cause death or great bodily harm. The court properly submits the issue to the jury when the evidence shows that the defendant struck the victim on the head several time with a wrench, resulting in cuts that required stitches. // Michaud v. S., 47 So. 3d 374 (5th DCA 2010), 35 F.L.W. D2508 (11/12/2010)
A wrench can constitute a deadly weapon for aggravated battery purposes when it is used in s manner likely to cause death or great bodily harm. The court properly submits the issue to the jury when the evidence shows that the defendant struck the victim on the head several time with a wrench, resulting in cuts that required stitches. // Michaud v. S., 47 So. 3d 374 (5th DCA 2010), 35 F.L.W. D2508 (11/12/2010)
Section 810.015, in which the legislature seeks to overrule Delgado, does not apply to burglaries committed before 2/1/00. Thus, the Delgado rule pertaining to the “remaining in” portion of the statute, applies to burglaries occurring before that date. // S. v. Ruiz, 863 So. 2d 1205 (Fla. 2003), 28 F.L.W. S855 (12/18/2003) // approving Ruiz v. S., 841 So. 2d 468 (3d DCA 2002, and Braggs v. S., 815 So. 2d 657 (3d DCA 2002)
Section 810.015, in which the legislature seeks to overrule Delgado, does not apply to burglaries committed before 2/1/00. Thus, the Delgado rule pertaining to the “remaining in” portion of the statute, applies to burglaries occurring before that date. // S. v. Ruiz, 863 So. 2d 1205 (Fla. 2003), 28 F.L.W. S855 (12/18/2003) // approving Ruiz v. S., 841 So. 2d 468 (3d DCA 2002, and Braggs v. S., 815 So. 2d 657 (3d DCA 2002)
Defendant was charged with premeditated and felony murder with robbery and burglary as the predicate felonies. At trial, the evidence showed that the defendant and another person entered the victim’s home with consent, and there was no evidence of surreptitious remaining in the house. The jury returned a general verdict of guilty. Held: A general verdict is invalid when it rests on multiple bases, one of which is legal invalid. because the jury received an improper pre-Delgado instruction regarding “remaining in” the residence, the burglary is improper. Because the jury could have based the murder conviction on a felony murder theory, and the felony murder theory could have rested on an improper understanding of burglary, the conviction is reversed. // Fitzpatrick v. S., 859 So. 2d 486 (Fla. 2003), 28 F.L.W. S679 (9/11/2003)
Defendant was charged with premeditated and felony murder with robbery and burglary as the predicate felonies. At trial, the evidence showed that the defendant and another person entered the victim’s home with consent, and there was no evidence of surreptitious remaining in the house. The jury returned a general verdict of guilty. Held: A general verdict is invalid when it rests on multiple bases, one of which is legal invalid. because the jury received an improper pre-Delgado instruction regarding “remaining in” the residence, the burglary is improper. Because the jury could have based the murder conviction on a felony murder theory, and the felony murder theory could have rested on an improper understanding of burglary, the conviction is reversed. // Fitzpatrick v. S., 859 So. 2d 486 (Fla. 2003), 28 F.L.W. S679 (9/11/2003)
Where the location of a burglary is a well-known public place (here, a school), and is identified in testimony and pleadings, there is no need to present testimony showing that the building is owned by the county school board. The place is sufficiently identified and there is no possibility of misidentification. // D.S.S. v. S., 850 So. 2d 459 (Fla. 2003), 28 F.L.W. S449 (6/12/2003) // affirming D.S.S. v. S., 806 So. 2d 554 (2d DCA 2002)
Where the location of a burglary is a well-known public place (here, a school), and is identified in testimony and pleadings, there is no need to present testimony showing that the building is owned by the county school board. The place is sufficiently identified and there is no possibility of misidentification. // D.S.S. v. S., 850 So. 2d 459 (Fla. 2003), 28 F.L.W. S449 (6/12/2003) // affirming D.S.S. v. S., 806 So. 2d 554 (2d DCA 2002)
The fact that a premises is open to the public is a complete defense to burglary. When a person who is the subject of a domestic violence restraining order which prohibits him from going to his wife’s place of employment comes to that location a kills her, he does not commit burglary. // The burglary and trespass statutes are written differently, and while the defendant’s act of coming to the victim’s workplace does not constitute burglary, it does constitute trespassing. // (See this case for extensive discussion of the structure of the burglary statute, and application of statutory interpretation rules.) // •S. v. Byars, 823 So. 2d 740 (Fla. 2002), 27 F.L.W. S625 (7/3/2002) // approving State v. Byars, 792 So. 2d 1235 (4th DCA 2001)
The fact that a premises is open to the public is a complete defense to burglary. When a person who is the subject of a domestic violence restraining order which prohibits him from going to his wife’s place of employment comes to that location a kills her, he does not commit burglary. // The burglary and trespass statutes are written differently, and while the defendant’s act of coming to the victim’s workplace does not constitute burglary, it does constitute trespassing. // (See this case for extensive discussion of the structure of the burglary statute, and application of statutory interpretation rules.) // •S. v. Byars, 823 So. 2d 740 (Fla. 2002), 27 F.L.W. S625 (7/3/2002) // approving State v. Byars, 792 So. 2d 1235 (4th DCA 2001)
While under Delgado a consensual entry cannot constitute a burglary when the defendant later commits a crime, the burden of showing consent is on the defendant. Where defendant presents no evidence that he was allowed in, the court can infer that the entry was not with consent of the victims. // Francis v. S., 808 So. 2d 110 (Fla. 2001), 27 F.L.W. S2 (12/20/2001)
While under Delgado a consensual entry cannot constitute a burglary when the defendant later commits a crime, the burden of showing consent is on the defendant. Where defendant presents no evidence that he was allowed in, the court can infer that the entry was not with consent of the victims. // Francis v. S., 808 So. 2d 110 (Fla. 2001), 27 F.L.W. S2 (12/20/2001)
Session law 2004-93, which attempts to nullify the rulings in Floyd v. State, 850 So. 2d 383 (Fla. 2002); Fitzpatrick v. State, 859 So. 2d 486 (Fla. 2003); and State v. Ruiz/State v. Braggs, Slip Opinion Nos. SC02-389/SC02-524, which held that session law 2001-58 could not retroactively overrule the ruling in Delgado v. State, 776 So. 2d 233 (Fla. 2000), is not effective. Thus, for burglaries occurring before the effective date of session law 2001-58, the Delgado rule applies, and counsel is ineffective in failing to raise the issue of whether defendant’s entry was with consent when he is charged with “remaining in” a structure. The legislature cannot overrule a decision of the Supreme Court. // •S. v. Robinson, 936 So. 2d 1198 (1st DCA 2006), 31 F.L.W. D2255 (8/31/2006)
Session law 2004-93, which attempts to nullify the rulings in Floyd v. State, 850 So. 2d 383 (Fla. 2002); Fitzpatrick v. State, 859 So. 2d 486 (Fla. 2003); and State v. Ruiz/State v. Braggs, Slip Opinion Nos. SC02-389/SC02-524, which held that session law 2001-58 could not retroactively overrule the ruling in Delgado v. State, 776 So. 2d 233 (Fla. 2000), is not effective. Thus, for burglaries occurring before the effective date of session law 2001-58, the Delgado rule applies, and counsel is ineffective in failing to raise the issue of whether defendant’s entry was with consent when he is charged with “remaining in” a structure. The legislature cannot overrule a decision of the Supreme Court. // •S. v. Robinson, 936 So. 2d 1198 (1st DCA 2006), 31 F.L.W. D2255 (8/31/2006)
Defendant may not be convicted of both burglary with an assault and burglary with a battery for a single entry. // Williams v. S., 927 So. 2d 145 (1st DCA 2006), 31 F.L.W. D1136 (4/24/2006)
Defendant may not be convicted of both burglary with an assault and burglary with a battery for a single entry. // Williams v. S., 927 So. 2d 145 (1st DCA 2006), 31 F.L.W. D1136 (4/24/2006)
(See Davis v. S., 892 So. 2d 518 (1st DCA 2004), 29 F.L.W. D2794 (12/15/2004) for discussion of the effect of session law 2001-58 overruling Delgado on cases in the pipeline after the decision in Delgado but prior to the effective date of the statutory change.)
(See Davis v. S., 892 So. 2d 518 (1st DCA 2004), 29 F.L.W. D2794 (12/15/2004) for discussion of the effect of session law 2001-58 overruling Delgado on cases in the pipeline after the decision in Delgado but prior to the effective date of the statutory change.)
Where the court acquits the defendant on a burglary charge, it is error to convict him on possession of burglary tools. // M.F. v. S., 864 So. 2d 1223 (1st DCA 2004), 29 F.L.W. D302 (1/23/2004)
Where the court acquits the defendant on a burglary charge, it is error to convict him on possession of burglary tools. // M.F. v. S., 864 So. 2d 1223 (1st DCA 2004), 29 F.L.W. D302 (1/23/2004)
Session law 2001-58 amended the definition of burglary to avoid Delgado, and became effective on July 1, 2001. The failure to object to instructions given under the old statute for a crime committed after that date is not fundamental error. // Manning v. S., 861 So. 2d 528 (1st DCA 2003), 29 F.L.W. D97 (12/31/2003)
Session law 2001-58 amended the definition of burglary to avoid Delgado, and became effective on July 1, 2001. The failure to object to instructions given under the old statute for a crime committed after that date is not fundamental error. // Manning v. S., 861 So. 2d 528 (1st DCA 2003), 29 F.L.W. D97 (12/31/2003)
Where the victim testifies only that she looked out “the door” and saw defendant in her garage trying to steal something, the evidence is insufficient to sustain a conviction for burglary of a dwelling. There was insufficient evidence to show that the garage was attached to the house, and no evidence to show curtilage. The conviction should be reduced to burglary of a structure. // McAllister v. S., 859 So. 2d 611 (1st DCA 2003), 28 F.L.W. D2736 (11/26/2003)
Where the victim testifies only that she looked out “the door” and saw defendant in her garage trying to steal something, the evidence is insufficient to sustain a conviction for burglary of a dwelling. There was insufficient evidence to show that the garage was attached to the house, and no evidence to show curtilage. The conviction should be reduced to burglary of a structure. // McAllister v. S., 859 So. 2d 611 (1st DCA 2003), 28 F.L.W. D2736 (11/26/2003)
Defendant may not be convicted of both burglary with an assault and armed burglary for a single entry. // McKinney v. S., 860 So. 2d 452 (1st DCA 2003), 28 F.L.W. D2018 (8/26/2003)
Defendant may not be convicted of both burglary with an assault and armed burglary for a single entry. // McKinney v. S., 860 So. 2d 452 (1st DCA 2003), 28 F.L.W. D2018 (8/26/2003)
Theft is neither a category I nor II lesser of burglary. Where the information does not contain the elements of theft, the court does not err in refusing to instruct on theft as a lesser of burglary. // Jones v. S., 829 So. 2d 351 (1st DCA 2002), 27 F.L.W. D2358 (11/1/2002)
Theft is neither a category I nor II lesser of burglary. Where the information does not contain the elements of theft, the court does not err in refusing to instruct on theft as a lesser of burglary. // Jones v. S., 829 So. 2d 351 (1st DCA 2002), 27 F.L.W. D2358 (11/1/2002)
Section 943.325, which requires a person sentenced for burglary to give a DNA sample for database purposes is not unconstitutional. // •L.S. v. S., 805 So. 2d 1004 (1st DCA 2001), 26 F.L.W. D2970 (12/17/2001)
Section 943.325, which requires a person sentenced for burglary to give a DNA sample for database purposes is not unconstitutional. // •L.S. v. S., 805 So. 2d 1004 (1st DCA 2001), 26 F.L.W. D2970 (12/17/2001)
A house that is undergoing major reconstruction does not qualify as a dwelling, even though it had been a dwelling for decades. // (See this case, and dissent, for extensive discussion of what qualifies as a “dwelling” for burglary purposes.) // •Munoz v. S., 937 So. 2d 686 (2d DCA 2006), 31 F.L.W. D2007 (7/28/2006)
A house that is undergoing major reconstruction does not qualify as a dwelling, even though it had been a dwelling for decades. // (See this case, and dissent, for extensive discussion of what qualifies as a “dwelling” for burglary purposes.) // •Munoz v. S., 937 So. 2d 686 (2d DCA 2006), 31 F.L.W. D2007 (7/28/2006)
Defendant cannot be convicted of both burglary with an assault and armed burglary for a single entry. // Chambers v. S., 924 So. 2d 975 (2d DCA 2006), 31 F.L.W. D1016 (4/7/2006)
Defendant cannot be convicted of both burglary with an assault and armed burglary for a single entry. // Chambers v. S., 924 So. 2d 975 (2d DCA 2006), 31 F.L.W. D1016 (4/7/2006)
Defendant can be convicted of only one count of burglary when he makes one entry. He may not be convicted of both armed burglary and burglary with an assault for a single incident. // Valdez v. S., 915 So. 2d 636 (2d DCA 2005), 30 F.L.W. D2372 (10/7/2005)
Defendant can be convicted of only one count of burglary when he makes one entry. He may not be convicted of both armed burglary and burglary with an assault for a single incident. // Valdez v. S., 915 So. 2d 636 (2d DCA 2005), 30 F.L.W. D2372 (10/7/2005)
Delgado applies to cases not final at the time of the decision, despite the legislative overruling of Delgado by session law 2001-58 (question certified). // Smith v. S., 867 So. 2d 617 (2d DCA 2004), 29 F.L.W. D620 (3/10/2004)
Delgado applies to cases not final at the time of the decision, despite the legislative overruling of Delgado by session law 2001-58 (question certified). // Smith v. S., 867 So. 2d 617 (2d DCA 2004), 29 F.L.W. D620 (3/10/2004)
Accessory after the fact is not a lesser of burglary, and the court errs in finding the child guilty of that offense when he is charged with burglary and grand theft. // C.W. v. S., 861 So. 2d 1243 (2d DCA 2003), 28 F.L.W. D2880 (12/12/2003)
Accessory after the fact is not a lesser of burglary, and the court errs in finding the child guilty of that offense when he is charged with burglary and grand theft. // C.W. v. S., 861 So. 2d 1243 (2d DCA 2003), 28 F.L.W. D2880 (12/12/2003)
When the information charges burglary of a building owned by the county school board, and the testimony describes a break-in at a local high school, the court does not err in refusing JOA based on the failure to prove ownership when the state does not call a witness who testifies that the building was owned by the school board. When the building is a local landmark, and there is no testimony that defendant had any ownership interest, evidence of ownership is sufficient. // D.S.S. v. S., 806 So. 2d 554 (2d DCA 2002), 27 F.L.W. D167 (1/16/2002) // affirmed, D.S.S. v. S., ___ So. 2d ___, 28 F.L.W. S449 (Fla. 6/12/2003)
When the information charges burglary of a building owned by the county school board, and the testimony describes a break-in at a local high school, the court does not err in refusing JOA based on the failure to prove ownership when the state does not call a witness who testifies that the building was owned by the school board. When the building is a local landmark, and there is no testimony that defendant had any ownership interest, evidence of ownership is sufficient. // D.S.S. v. S., 806 So. 2d 554 (2d DCA 2002), 27 F.L.W. D167 (1/16/2002) // affirmed, D.S.S. v. S., ___ So. 2d ___, 28 F.L.W. S449 (Fla. 6/12/2003)
Defendant is properly convicted of armed burglary where the evidence shows he used a BB gun to carjack the victim’s car. Whether the weapon used is a dangerous weapon is an issue for the jury. The failure to present evidence going to the dangerousness of the weapon is not dispositive on the issue whether it is a deadly weapon. // (See this case for discussion of the evidence needed to determine that a weapon is a dangerous weapon for armed burglary purposes.) // Santiago v. S., 900 So. 2d 710 (3d DCA 2005), 30 F.L.W. D1071 (4/27/2005)
Defendant is properly convicted of armed burglary where the evidence shows he used a BB gun to carjack the victim’s car. Whether the weapon used is a dangerous weapon is an issue for the jury. The failure to present evidence going to the dangerousness of the weapon is not dispositive on the issue whether it is a deadly weapon. // (See this case for discussion of the evidence needed to determine that a weapon is a dangerous weapon for armed burglary purposes.) // Santiago v. S., 900 So. 2d 710 (3d DCA 2005), 30 F.L.W. D1071 (4/27/2005)
Where the defendant enters the victim’s home by causing her child to let him in, and the evidence shows he had the intent to attack the victim when he entered, the court properly denies a JOA on a burglary charge. // Irizarry v. S., 905 So. 2d 160 (3d DCA 2005), 30 F.L.W. D400 (2/9/2005)
Where the defendant enters the victim’s home by causing her child to let him in, and the evidence shows he had the intent to attack the victim when he entered, the court properly denies a JOA on a burglary charge. // Irizarry v. S., 905 So. 2d 160 (3d DCA 2005), 30 F.L.W. D400 (2/9/2005)
Defendant escaped while being brought to court. He ran into a business and locked himself in, and he ultimately was recaptured. The state charged him with burglary for entering the business with the intent to commit escape. Held: The crime of escape had already occurred when he entered the building, and he cannot be convicted of burglary with the intent to commit escape. // Gaskin v. S., 869 So. 2d 646 (3d DCA 2004), 29 F.L.W. D780 (3/31/2004)
Defendant escaped while being brought to court. He ran into a business and locked himself in, and he ultimately was recaptured. The state charged him with burglary for entering the business with the intent to commit escape. Held: The crime of escape had already occurred when he entered the building, and he cannot be convicted of burglary with the intent to commit escape. // Gaskin v. S., 869 So. 2d 646 (3d DCA 2004), 29 F.L.W. D780 (3/31/2004)
Court errs in sentencing defendant for burglary of a dwelling when the verdict form only specifies that he was guilty of burglary. Where the verdict form only specifies a finding of guilt on the charge of “Burglary,” not burglary of a dwelling, he cannot be adjudicated on a burglary of a dwelling charge. // Fletcher v. S., 866 So. 2d 113 (3d DCA 2004), 29 F.L.W. D378 (2/11/2004)
Court errs in sentencing defendant for burglary of a dwelling when the verdict form only specifies that he was guilty of burglary. Where the verdict form only specifies a finding of guilt on the charge of “Burglary,” not burglary of a dwelling, he cannot be adjudicated on a burglary of a dwelling charge. // Fletcher v. S., 866 So. 2d 113 (3d DCA 2004), 29 F.L.W. D378 (2/11/2004)
Giving a “remaining in” instruction is not fundamental error when the sole theory of prosecution is that the entry was not consensual. // Johnson v. S., 858 So. 2d 1274 (3d DCA 2003), 28 F.L.W. D2645 (11/19/2003)
Giving a “remaining in” instruction is not fundamental error when the sole theory of prosecution is that the entry was not consensual. // Johnson v. S., 858 So. 2d 1274 (3d DCA 2003), 28 F.L.W. D2645 (11/19/2003)
Section 810.015, in which the legislature sought to overrule Delgado, does not apply to crime committed before the date of the statute. // Burnes v. S., 861 So. 2d 78 (3d DCA 2003), 28 F.L.W. D2467 (10/29/2003)
Section 810.015, in which the legislature sought to overrule Delgado, does not apply to crime committed before the date of the statute. // Burnes v. S., 861 So. 2d 78 (3d DCA 2003), 28 F.L.W. D2467 (10/29/2003)
Court errs in giving a “remaining in” instruction without including that the remaining in must be surreptitious. // Hernandez v. S., 851 So. 2d 892 (3d DCA 2003), 28 F.L.W. D1474 (6/25/2003)
Court errs in giving a “remaining in” instruction without including that the remaining in must be surreptitious. // Hernandez v. S., 851 So. 2d 892 (3d DCA 2003), 28 F.L.W. D1474 (6/25/2003)
Defendant was charged with armed burglary with an assault based on evidence that the victim found defendant in the carport, and as he approached he held a screwdriver in a threatening manner. He was convicted of armed burglary without an assault. Held: The verdict is not inconsistent. It is possible that the jury found he used the screwdriver as a weapon, but did not commit an assault on the victim. // Gonzalez v. S., 841 So. 2d 650 (3d DCA 2003), 28 F.L.W. D897 (4/9/2003)
Defendant was charged with armed burglary with an assault based on evidence that the victim found defendant in the carport, and as he approached he held a screwdriver in a threatening manner. He was convicted of armed burglary without an assault. Held: The verdict is not inconsistent. It is possible that the jury found he used the screwdriver as a weapon, but did not commit an assault on the victim. // Gonzalez v. S., 841 So. 2d 650 (3d DCA 2003), 28 F.L.W. D897 (4/9/2003)
While defendant does not commit burglary when he enters a store open to the public for the purpose of robbing it, when he goes over the counter into a non-public part of the store, he commits burglary. // Lewis v. S., 841 So. 2d 582 (3d DCA 2003), 28 F.L.W. D802 (3/26/2003)
While defendant does not commit burglary when he enters a store open to the public for the purpose of robbing it, when he goes over the counter into a non-public part of the store, he commits burglary. // Lewis v. S., 841 So. 2d 582 (3d DCA 2003), 28 F.L.W. D802 (3/26/2003)
Evidence that the defendant was identified in a burglarized warehouse, and that a firearm was missing, is sufficient to sustain armed burglary conviction. // Defendant’s argument that the gun could have been stolen at a time other than that when defendant was inside must be supported by evidence. Merely speculating that there could have been a second burglary is not sufficient. // Johnekins v. S., 823 So. 2d 253 (3d DCA 2002), 27 F.L.W. D1794 (8/7/2002)
Evidence that the defendant was identified in a burglarized warehouse, and that a firearm was missing, is sufficient to sustain armed burglary conviction. // Defendant’s argument that the gun could have been stolen at a time other than that when defendant was inside must be supported by evidence. Merely speculating that there could have been a second burglary is not sufficient. // Johnekins v. S., 823 So. 2d 253 (3d DCA 2002), 27 F.L.W. D1794 (8/7/2002)
Session law 2001-58, in which the legislature indicated that Delgado v. State, 776 So. 2d 233 (Fla. 2000) was wrongly decided and that case law issued prior to Delgado correctly interpreted the statute, failed to overrule the rule of Delgado. Only the Supreme Court can recede from a decision issued by it, and the legislature cannot bind the lower courts regarding a ruling from the Supreme Court (question certified). // Braggs v. S., 815 So. 2d 657 (3d DCA 2002), 27 F.L.W. D379 (2/13/2002)
Session law 2001-58, in which the legislature indicated that Delgado v. State, 776 So. 2d 233 (Fla. 2000) was wrongly decided and that case law issued prior to Delgado correctly interpreted the statute, failed to overrule the rule of Delgado. Only the Supreme Court can recede from a decision issued by it, and the legislature cannot bind the lower courts regarding a ruling from the Supreme Court (question certified). // Braggs v. S., 815 So. 2d 657 (3d DCA 2002), 27 F.L.W. D379 (2/13/2002)
When defendant is charged with burglary with an assault, the jury should be instructed that he can convicted him of both trespassing and battery on the single count. When defendant is charged with a compound crime, he can be convicted of multiple lessers for the single count. // Gregory v. S., 937 So. 2d 180 (4th DCA 2006), 31 F.L.W. D2172 (8/16/2006)
When defendant is charged with burglary with an assault, the jury should be instructed that he can convicted him of both trespassing and battery on the single count. When defendant is charged with a compound crime, he can be convicted of multiple lessers for the single count. // Gregory v. S., 937 So. 2d 180 (4th DCA 2006), 31 F.L.W. D2172 (8/16/2006)
The court errs in giving the pre-2001 jury instructions, including the “remaining in” portion, in a post 2001 burglary. // Ray v. S., 933 So. 2d 716 (4th DCA 2006), 31 F.L.W. D1980 (7/26/2006)
The court errs in giving the pre-2001 jury instructions, including the “remaining in” portion, in a post 2001 burglary. // Ray v. S., 933 So. 2d 716 (4th DCA 2006), 31 F.L.W. D1980 (7/26/2006)
In a pre-2001 burglary (Delgado rule in effect), the court does not err in including the “remaining in” language in the instructions when there was an issue whether the entry was stealthy and without consent, or was with consent. // Saintelus v. S., 935 So. 2d 51 (4th DCA 2006), 31 F.L.W. D1985 (7/26/2006)
In a pre-2001 burglary (Delgado rule in effect), the court does not err in including the “remaining in” language in the instructions when there was an issue whether the entry was stealthy and without consent, or was with consent. // Saintelus v. S., 935 So. 2d 51 (4th DCA 2006), 31 F.L.W. D1985 (7/26/2006)
When the child admits to using a screwdriver to start a stolen car, the court errs in finding him guilty of possession of burglary tools. While the screwdriver might have been used in the theft, there was no evidence that it was used in a burglary. // A.W. v. S., 920 So. 2d 845 (4th DCA 2006), 31 F.L.W. D577 (2/22/2006)
When the child admits to using a screwdriver to start a stolen car, the court errs in finding him guilty of possession of burglary tools. While the screwdriver might have been used in the theft, there was no evidence that it was used in a burglary. // A.W. v. S., 920 So. 2d 845 (4th DCA 2006), 31 F.L.W. D577 (2/22/2006)
When defendant is charged with a compound offense such as burglary with a battery, the jury is permitted to convict for lessers of each component of the crime. Thus, when the jury sends out a note asking if they can convict of both trespass and battery, the court errs by telling the jury they may select only one. A judgment can be entered on both lessers when the information includes fact necessary to support convictions for both offenses. // Gian-Grasso v. S., 899 So. 2d 392 (4th DCA 2005), 30 F.L.W. D854 (3/30/2005)
When defendant is charged with a compound offense such as burglary with a battery, the jury is permitted to convict for lessers of each component of the crime. Thus, when the jury sends out a note asking if they can convict of both trespass and battery, the court errs by telling the jury they may select only one. A judgment can be entered on both lessers when the information includes fact necessary to support convictions for both offenses. // Gian-Grasso v. S., 899 So. 2d 392 (4th DCA 2005), 30 F.L.W. D854 (3/30/2005)
Defendant is entitled to a habeas writ for ineffective assistance of appellate counsel when counsel did not raise on appeal a claim regarding the failure to give a proper burglary instruction. Instructing the jury that defendant must have a fully formed intent to commit burglary, rather than some other offense, is error. // Bruce v. S., 879 So. 2d 686 (4th DCA 2004), 29 F.L.W. D1836 (8/11/2004)
Defendant is entitled to a habeas writ for ineffective assistance of appellate counsel when counsel did not raise on appeal a claim regarding the failure to give a proper burglary instruction. Instructing the jury that defendant must have a fully formed intent to commit burglary, rather than some other offense, is error. // Bruce v. S., 879 So. 2d 686 (4th DCA 2004), 29 F.L.W. D1836 (8/11/2004)
Where defendant enters a home located in a secluded place, the court properly gives a stealthy entry instruction. // Oviedo v. S., 879 So. 2d 682 (4th DCA 2004), 29 F.L.W. D1842 (8/11/2004)
Where defendant enters a home located in a secluded place, the court properly gives a stealthy entry instruction. // Oviedo v. S., 879 So. 2d 682 (4th DCA 2004), 29 F.L.W. D1842 (8/11/2004)
Where the defendant entered a fenced area and stole golf carts, and there was not evidence that he entered a building or the curtilage of a building, the court errs in finding him guilty of burglary. // R.G. v. S., 865 So. 2d 685 (4th DCA 2004), 29 F.L.W. D422 (2/18/2004)
Where the defendant entered a fenced area and stole golf carts, and there was not evidence that he entered a building or the curtilage of a building, the court errs in finding him guilty of burglary. // R.G. v. S., 865 So. 2d 685 (4th DCA 2004), 29 F.L.W. D422 (2/18/2004)
Defendant entered a church office and stole money at a time when the church was open for services. The church office was not open to the public, and the court read the “entered or remained” language of the standard instruction. Held: Under the circumstances, reading the “remaining in” language is not error, because there was sufficient evidence to sow that defendant entered the office surreptitiously. // Dixon v. S., 855 So. 2d 1245 (4th DCA 2003), 28 F.L.W. D2374 (10/15/2003)
Defendant entered a church office and stole money at a time when the church was open for services. The church office was not open to the public, and the court read the “entered or remained” language of the standard instruction. Held: Under the circumstances, reading the “remaining in” language is not error, because there was sufficient evidence to sow that defendant entered the office surreptitiously. // Dixon v. S., 855 So. 2d 1245 (4th DCA 2003), 28 F.L.W. D2374 (10/15/2003)
Where defendant enters a home with a pocket knife in his hand, but does not threaten anyone with it, he is properly convicted of burglary of a dwelling rather than armed burglary. The pocket knife was not used in a manner likely to cause death or great bodily harm. // (See also the concurrence, arguing that is it improper to require that an armed burglary be reduced when defendant holds a pocketknife, but not when the defendant holds an unloaded BB gun, as in Dale v. S., 703 So. 2d 1045 (Fla. 1997).) // J.W. v. S., 849 So. 2d 1111 (4th DCA 2003), 28 F.L.W. D1446 (6/18/2003)
Where defendant enters a home with a pocket knife in his hand, but does not threaten anyone with it, he is properly convicted of burglary of a dwelling rather than armed burglary. The pocket knife was not used in a manner likely to cause death or great bodily harm. // (See also the concurrence, arguing that is it improper to require that an armed burglary be reduced when defendant holds a pocketknife, but not when the defendant holds an unloaded BB gun, as in Dale v. S., 703 So. 2d 1045 (Fla. 1997).) // J.W. v. S., 849 So. 2d 1111 (4th DCA 2003), 28 F.L.W. D1446 (6/18/2003)
Including “remaining in” language in burglary jury instructions is not error when the defense argues that defendant entered with consent and there is evidence to support the theory that defendant entered and formed the intent to steal after entering. // Jones v. S., 843 So. 2d 946 (4th DCA 2003), 28 F.L.W. D910 (4/9/2003)
Including “remaining in” language in burglary jury instructions is not error when the defense argues that defendant entered with consent and there is evidence to support the theory that defendant entered and formed the intent to steal after entering. // Jones v. S., 843 So. 2d 946 (4th DCA 2003), 28 F.L.W. D910 (4/9/2003)
The court does not commit fundamental error by including the “remaining in” language in the burglary jury instruction when the crimes was a “breaking and entering” type of burglary. // Collins v. S., 839 So. 2d 862 (4th DCA 2003), 28 F.L.W. D694 (3/12/2003)
The court does not commit fundamental error by including the “remaining in” language in the burglary jury instruction when the crimes was a “breaking and entering” type of burglary. // Collins v. S., 839 So. 2d 862 (4th DCA 2003), 28 F.L.W. D694 (3/12/2003)
Where defendant claims that he went to a restaurant to apply for a job, and a security camera shows him running from the restaurant following a theft from the cash register, the circumstantial evidence is sufficient to withstand a JOA. // Durrant v. S., 839 So. 2d 821 (4th DCA 2003), 28 F.L.W. D627 (3/5/2003)
Where defendant claims that he went to a restaurant to apply for a job, and a security camera shows him running from the restaurant following a theft from the cash register, the circumstantial evidence is sufficient to withstand a JOA. // Durrant v. S., 839 So. 2d 821 (4th DCA 2003), 28 F.L.W. D627 (3/5/2003)
(See S.D. v. S., 837 So. 2d 1173 (4th DCA 2003), 28 F.L.W. D563 (2/26/2003) for discussion of the sufficiency of evidence showing intent to commit an offense in a burglary charge.)
(See S.D. v. S., 837 So. 2d 1173 (4th DCA 2003), 28 F.L.W. D563 (2/26/2003) for discussion of the sufficiency of evidence showing intent to commit an offense in a burglary charge.)
While it may be error to give the “remaining in” jury instruction, where there is no reasonable probability that the jury would be misled by the erroneous instruction (here, because the defendant broke into a store in the middle of the night and stole a television), the error is not reversible. // Roberson v. S., 841 So. 2d 490 (4th DCA 2003), 28 F.L.W. D385 (2/5/2003)
While it may be error to give the “remaining in” jury instruction, where there is no reasonable probability that the jury would be misled by the erroneous instruction (here, because the defendant broke into a store in the middle of the night and stole a television), the error is not reversible. // Roberson v. S., 841 So. 2d 490 (4th DCA 2003), 28 F.L.W. D385 (2/5/2003)
While giving a “remaining in” instruction is error in a burglary trial, it is not fundamental error where there is no way the jury could have believed the defendant had not entered to residence without the intent to commit a crime. // Alexandre v. S., 834 So. 2d 344 (4th DCA 2003), 28 F.L.W. D196 (1/8/2003)
While giving a “remaining in” instruction is error in a burglary trial, it is not fundamental error where there is no way the jury could have believed the defendant had not entered to residence without the intent to commit a crime. // Alexandre v. S., 834 So. 2d 344 (4th DCA 2003), 28 F.L.W. D196 (1/8/2003)
Trespass is a category two lesser of burglary of a dwelling. When the information alleges the element of the offense and there is evidence that supports the elements, the court must give the lesser if requested. The fact that there is evidence the defendant committed the greater crime is not relevant in deciding whether to give the lesser. // Piccioni v. S., 833 So. 2d 247 (4th DCA 2002), 28 F.L.W. D106 (12/26/2002)
Trespass is a category two lesser of burglary of a dwelling. When the information alleges the element of the offense and there is evidence that supports the elements, the court must give the lesser if requested. The fact that there is evidence the defendant committed the greater crime is not relevant in deciding whether to give the lesser. // Piccioni v. S., 833 So. 2d 247 (4th DCA 2002), 28 F.L.W. D106 (12/26/2002)
An incomplete addition being constructed beside the victim’s home is part of the dwelling, and defendant is properly convicted of burglary of the dwelling. // Anderson v. S., 831 So. 2d 702 (4th DCA 2002), 27 F.L.W. D2369 (10/30/2002)
An incomplete addition being constructed beside the victim’s home is part of the dwelling, and defendant is properly convicted of burglary of the dwelling. // Anderson v. S., 831 So. 2d 702 (4th DCA 2002), 27 F.L.W. D2369 (10/30/2002)
Trespass is a category II lesser of burglary of a dwelling. // For the court to be required to give a category II lesser, the elements of the lesser must be alleged and the evidence must support the lesser. // Court errs in giving trespassing with a human being present (§ 810.08(2)(b)) as a lesser of burglary of a dwelling when the information does not allege that the dwelling was occupied. // Henig v. S., 820 So. 2d 1037 (4th DCA 2002), 27 F.L.W. D1584 (7/10/2002)
Trespass is a category II lesser of burglary of a dwelling. // For the court to be required to give a category II lesser, the elements of the lesser must be alleged and the evidence must support the lesser. // Court errs in giving trespassing with a human being present (§ 810.08(2)(b)) as a lesser of burglary of a dwelling when the information does not allege that the dwelling was occupied. // Henig v. S., 820 So. 2d 1037 (4th DCA 2002), 27 F.L.W. D1584 (7/10/2002)
Defendant scheduled an appointment and went to the office of a lawyer who had handled a case for him years before. Once in the office, the defendant pulled a gun and robbed the attorney. Held: The actions do not constituted burglary under the Delgado rule. // Otero v. S., 807 So. 2d 666 (4th DCA 2001), 26 F.L.W. D2701 (11/14/2001)
Defendant scheduled an appointment and went to the office of a lawyer who had handled a case for him years before. Once in the office, the defendant pulled a gun and robbed the attorney. Held: The actions do not constituted burglary under the Delgado rule. // Otero v. S., 807 So. 2d 666 (4th DCA 2001), 26 F.L.W. D2701 (11/14/2001)
Where defendant clearly did not enter the victim’s residence in a stealthy manner, the court errs in giving the stealthy error instruction. // Erroneous instruction is subject to harmless error analysis. // Daughtry v. S., 804 So. 2d 426 (4th DCA 2001), 26 F.L.W. D2501 (10/17/2001)
Where defendant clearly did not enter the victim’s residence in a stealthy manner, the court errs in giving the stealthy error instruction. // Erroneous instruction is subject to harmless error analysis. // Daughtry v. S., 804 So. 2d 426 (4th DCA 2001), 26 F.L.W. D2501 (10/17/2001)
The court errs in instructing the jury that before they can find the defendant guilty of burglary, it must find that he entered the home with the intent to commit burglary. The instruction is circular and is fundamental error. // Hillman v. S., 920 So. 2d 48 (5th DCA 2005), 30 F.L.W. D2839 (12/16/2005)
The court errs in instructing the jury that before they can find the defendant guilty of burglary, it must find that he entered the home with the intent to commit burglary. The instruction is circular and is fundamental error. // Hillman v. S., 920 So. 2d 48 (5th DCA 2005), 30 F.L.W. D2839 (12/16/2005)
The court commits fundamental error when it instructs the jury that, as an element of burglary, the state must prove that the defendant had the “fully formed, conscious intent to commit an offense of burglary in that dwelling.” // Stone v. S., 899 So. 2d 421 (5th DCA 2005), 30 F.L.W. D885 (4/1/2005)
The court commits fundamental error when it instructs the jury that, as an element of burglary, the state must prove that the defendant had the “fully formed, conscious intent to commit an offense of burglary in that dwelling.” // Stone v. S., 899 So. 2d 421 (5th DCA 2005), 30 F.L.W. D885 (4/1/2005)
When defendant steals an antique firearm during a burglary, but does not use the gun in committing a crime, he cannot be convicted of armed burglary because the gun does not constitute a “dangerous weapon” under §810.02(2)(b). // Brown v. S., 896 So. 2d 808 (5th DCA 2005), 30 F.L.W. D416 (2/11/2005)
When defendant steals an antique firearm during a burglary, but does not use the gun in committing a crime, he cannot be convicted of armed burglary because the gun does not constitute a “dangerous weapon” under §810.02(2)(b). // Brown v. S., 896 So. 2d 808 (5th DCA 2005), 30 F.L.W. D416 (2/11/2005)
Because intent is shown by circumstantial evidence, it is up to the jury to determine whether the defendant had the intent to commit a crime when he entered the defendant’s home. Thus, when the evidence shows that defendant entered the victim’s home demanding to know where another person lived, and the defendant attacked the victim, the evidence is sufficient to sustain a determination that the defendant entered the home with the intent to commit a crime. // Perreault v. S., 831 So. 2d 784 (5th DCA 2002), 27 F.L.W. D2599 (12/6/2002)
Because intent is shown by circumstantial evidence, it is up to the jury to determine whether the defendant had the intent to commit a crime when he entered the defendant’s home. Thus, when the evidence shows that defendant entered the victim’s home demanding to know where another person lived, and the defendant attacked the victim, the evidence is sufficient to sustain a determination that the defendant entered the home with the intent to commit a crime. // Perreault v. S., 831 So. 2d 784 (5th DCA 2002), 27 F.L.W. D2599 (12/6/2002)
Defendant is properly convicted of both armed carjacking and burglary of a conveyance with an assault for the same incident (but see dissent). // Green v. S., 828 So. 2d 462 (5th DCA 2002), 27 F.L.W. D2371 (10/18/2002)
Defendant is properly convicted of both armed carjacking and burglary of a conveyance with an assault for the same incident (but see dissent). // Green v. S., 828 So. 2d 462 (5th DCA 2002), 27 F.L.W. D2371 (10/18/2002)
The act of reaching into a building qualifies as “entry” into the building. // Polk v. S., 825 So. 2d 478 (5th DCA 2002), 27 F.L.W. D1960 (8/30/2002)
The act of reaching into a building qualifies as “entry” into the building. // Polk v. S., 825 So. 2d 478 (5th DCA 2002), 27 F.L.W. D1960 (8/30/2002)
Defendant was given permission to enter the victim’s house to use the bathroom. While in the house, he went into a bedroom and stole jewelry. Held: Court properly denies JOA on burglary charge. // Gruver v. S., 816 So. 2d 835 (5th DCA 2002), 27 F.L.W. D1219 (5/24/2002)
Defendant was given permission to enter the victim’s house to use the bathroom. While in the house, he went into a bedroom and stole jewelry. Held: Court properly denies JOA on burglary charge. // Gruver v. S., 816 So. 2d 835 (5th DCA 2002), 27 F.L.W. D1219 (5/24/2002)
(See In re: Standard Instructions in Criminal Cases - Report No. 2007-11, 986 So. 2d 563 (Fla. 2008), 33 F.L.W. S554 (7/10/2008), for the text of instructions for burglary of an emergency vehicle and burglary in a county that is under state of emergency, and a revised instruction for theft.)
(See In re: Standard Instructions in Criminal Cases - Report No. 2007-11, 986 So. 2d 563 (Fla. 2008), 33 F.L.W. S554 (7/10/2008), for the text of instructions for burglary of an emergency vehicle and burglary in a county that is under state of emergency, and a revised instruction for theft.)
Entry by consent obtained through fraud or deceit is a legal nullity and is not a defense to burglary. Consent obtained through coercion or an implied threat of force is likewise a nullity and is not a defense. // Lynch v. S., 2 So. 3d 47 (Fla. 2008), 34 F.L.W. S179 (11/6/2008)
Entry by consent obtained through fraud or deceit is a legal nullity and is not a defense to burglary. Consent obtained through coercion or an implied threat of force is likewise a nullity and is not a defense. // Lynch v. S., 2 So. 3d 47 (Fla. 2008), 34 F.L.W. S179 (11/6/2008)
A coconspirator who lives in the same house as the victim cannot give consent to enter the house to commit a crime against the victim, and thereby avoid a burglary charge. // Bradley v. S., 33 So. 3d 664 (Fla. 2010), 35 F.L.W. S23 (1/7/2010)
A coconspirator who lives in the same house as the victim cannot give consent to enter the house to commit a crime against the victim, and thereby avoid a burglary charge. // Bradley v. S., 33 So. 3d 664 (Fla. 2010), 35 F.L.W. S23 (1/7/2010)
To constitute burglary tools, the defendant must have tools that are intended to be used in the course of unlawfully entering a premises, not tools to be used after the entry is complete. Thus, possession of wire cutters to be used to cut copper tubing and wiring in a house under construction does not constitute possession of burglary tools. // Hardwick v. S., 16 So. 3d 1045 (1st DCA 2009), 34 F.L.W. D1854 (9/10/2009)
To constitute burglary tools, the defendant must have tools that are intended to be used in the course of unlawfully entering a premises, not tools to be used after the entry is complete. Thus, possession of wire cutters to be used to cut copper tubing and wiring in a house under construction does not constitute possession of burglary tools. // Hardwick v. S., 16 So. 3d 1045 (1st DCA 2009), 34 F.L.W. D1854 (9/10/2009)
Where defendant enters into a fenced area of a house, and the fence has an opening for the driveway, the yard is sufficiently enclosed to be considered the curtilage of the house for burglary purposes. // Defendant entered the yard of a house that had been damaged by fire in 1996 and was being renovated. He stole siding off the house. Held: A house is a “dwelling” for purposes of §810.011(2) if the character of the structure is such that it is suitable for lodging by people. Where there is no evidence that the damage to the house had rendered in unsuitable for living, the court properly denies a JOA. // (See this case for discussion of when a damaged house is no longer a “dwelling” for burglary purposes.) // Jacobs v. S., 41 So. 3d 1004 (1st DCA 2010), 35 F.L.W. D1755 (8/5/2010)
Where defendant enters into a fenced area of a house, and the fence has an opening for the driveway, the yard is sufficiently enclosed to be considered the curtilage of the house for burglary purposes. // Defendant entered the yard of a house that had been damaged by fire in 1996 and was being renovated. He stole siding off the house. Held: A house is a “dwelling” for purposes of §810.011(2) if the character of the structure is such that it is suitable for lodging by people. Where there is no evidence that the damage to the house had rendered in unsuitable for living, the court properly denies a JOA. // (See this case for discussion of when a damaged house is no longer a “dwelling” for burglary purposes.) // Jacobs v. S., 41 So. 3d 1004 (1st DCA 2010), 35 F.L.W. D1755 (8/5/2010)
Defendant obtained the key to a rental home without permission of the owner and used the home for three days with his girlfriend for a vacation. He was charged with burglary. Held: Use of the rental home over the course of three days constitutes theft, and his entry into the home constitutes burglary. // Hughes v. S., 36 So. 3d 816 (1st DCA 2010), 35 F.L.W. D1160 (5/26/2010)
Defendant obtained the key to a rental home without permission of the owner and used the home for three days with his girlfriend for a vacation. He was charged with burglary. Held: Use of the rental home over the course of three days constitutes theft, and his entry into the home constitutes burglary. // Hughes v. S., 36 So. 3d 816 (1st DCA 2010), 35 F.L.W. D1160 (5/26/2010)
Unless a garage is attached to a house or is substantially enclosed along with a house, a defendant who burglarizes the garage commits burglary of a structure, not a dwelling. // Smalls v. S., 18 So. 3d 606 (1st DCA 2009), 34 F.L.W. D944 (5/11/2009)
Unless a garage is attached to a house or is substantially enclosed along with a house, a defendant who burglarizes the garage commits burglary of a structure, not a dwelling. // Smalls v. S., 18 So. 3d 606 (1st DCA 2009), 34 F.L.W. D944 (5/11/2009)
The court errs in failing to grant a JOA on a charge of possession of burglary tools where the evidence showed that defendant was on the roof of a building cutting copper tubing for an air conditioning unit. The tools in his possession were not being used to commit a burglary because they were not being used to enter the building. // Clark v. S., ___ So. 3d ___, 36 F.L.W. D787 (1st DCA 4/14/2011)
The court errs in failing to grant a JOA on a charge of possession of burglary tools where the evidence showed that defendant was on the roof of a building cutting copper tubing for an air conditioning unit. The tools in his possession were not being used to commit a burglary because they were not being used to enter the building. // Clark v. S., ___ So. 3d ___, 36 F.L.W. D787 (1st DCA 4/14/2011)
Trespassing is a category II lesser of burglary of a dwelling, and the court errs in failing to give the instruction when the information alleges all of the elements of trespassing. // Simple burglary is a category I lesser of burglary of a dwelling, the court must give the instruction regardless of the allegation in the information. // McKiver v. S., ___ So. 3d ___, 36 F.L.W. D333 (1st DCA 2/11/2011)
Trespassing is a category II lesser of burglary of a dwelling, and the court errs in failing to give the instruction when the information alleges all of the elements of trespassing. // Simple burglary is a category I lesser of burglary of a dwelling, the court must give the instruction regardless of the allegation in the information. // McKiver v. S., ___ So. 3d ___, 36 F.L.W. D333 (1st DCA 2/11/2011)
Burglary of a dwelling with an assault under §810.02(2)(a) is a form of burglary of a dwelling, and is an enumerated offense for PRR sentencing purposes. // Campbell v. S., 29 So. 3d 1147 (1st DCA 2010), 35 F.L.W. D276 (1/29/2010)
Burglary of a dwelling with an assault under §810.02(2)(a) is a form of burglary of a dwelling, and is an enumerated offense for PRR sentencing purposes. // Campbell v. S., 29 So. 3d 1147 (1st DCA 2010), 35 F.L.W. D276 (1/29/2010)
Entry into a detached garage is not burglary of a dwelling unless the garage is in a substantially enclosed yard. // Smalls v. S., 973 So. 2d 630 (1st DCA 2008), 33 F.L.W. D359 (1/28/2008)
Entry into a detached garage is not burglary of a dwelling unless the garage is in a substantially enclosed yard. // Smalls v. S., 973 So. 2d 630 (1st DCA 2008), 33 F.L.W. D359 (1/28/2008)
Instructing the jury that “at the time of entering the structure [defendant] had a fully formed, conscious intent to commit the offense of burglary in that structure” is fundamental error and appellate counsel is ineffective in failing to argue it. // Lee v. S., 958 So. 2d 521 (2d DCA 2007), 32 F.L.W. D1422 (6/6/2007)
Instructing the jury that “at the time of entering the structure [defendant] had a fully formed, conscious intent to commit the offense of burglary in that structure” is fundamental error and appellate counsel is ineffective in failing to argue it. // Lee v. S., 958 So. 2d 521 (2d DCA 2007), 32 F.L.W. D1422 (6/6/2007)
Defendant was charged with burglary with a battery and sexual battery. He was convicted of burglary with a battery and simple battery as a lesser of sexual battery. Held: Under the circumstances conviction of those offense is a double jeopardy violation. // Avila v. S., 9 So. 3d 778 (2d DCA 2009), 34 F.L.W. D1138 (6/5/2009)
Defendant was charged with burglary with a battery and sexual battery. He was convicted of burglary with a battery and simple battery as a lesser of sexual battery. Held: Under the circumstances conviction of those offense is a double jeopardy violation. // Avila v. S., 9 So. 3d 778 (2d DCA 2009), 34 F.L.W. D1138 (6/5/2009)
Defendant cannot be convicted of both burglary with an assault and burglary of a dwelling for a single incident. // Defendant cannot be convicted of both burglary with an assault and home invasion robbery for a single incident. // Coleman v. S., 956 So. 2d 1254 (2d DCA 2007), 32 F.L.W. D1377 (5/30/2007)
Defendant cannot be convicted of both burglary with an assault and burglary of a dwelling for a single incident. // Defendant cannot be convicted of both burglary with an assault and home invasion robbery for a single incident. // Coleman v. S., 956 So. 2d 1254 (2d DCA 2007), 32 F.L.W. D1377 (5/30/2007)
The court errs in giving a possession of recently stolen property instruction in a burglary and petit theft case where the only evidence that defendant had possessed stolen copper wiring was that he had residue on his hands similar to that which resulted from handling the wire. The evidence is insufficient to give the instruction. // Waldron v. S., 979 So. 2d 449 (2d DCA 2008), 33 F.L.W. D1169 (4/25/2008)
The court errs in giving a possession of recently stolen property instruction in a burglary and petit theft case where the only evidence that defendant had possessed stolen copper wiring was that he had residue on his hands similar to that which resulted from handling the wire. The evidence is insufficient to give the instruction. // Waldron v. S., 979 So. 2d 449 (2d DCA 2008), 33 F.L.W. D1169 (4/25/2008)
Defendant cannot be convicted of both armed burglary of a dwelling and attempted home invasion robbery for a single entry. // Schulterbrandt v. S., 984 So. 2d 542 (2d DCA 2008), 33 F.L.W. D1107 (4/23/2008)
Defendant cannot be convicted of both armed burglary of a dwelling and attempted home invasion robbery for a single entry. // Schulterbrandt v. S., 984 So. 2d 542 (2d DCA 2008), 33 F.L.W. D1107 (4/23/2008)
Defendant was a runaway who was staying without permission in a vacant house. The owner of the house came to check on the property, and left his wallet in the house when he left. Defendant stole the wallet and was charged with burglary. Held: The child did not enter the house with the intent to commit a crime, and while he committed trespassing, he did not commit burglary. // J.J.D. v. S., 973 So. 2d 1254 (2d DCA 2008), 33 F.L.W. D454 (2/8/2008)
Defendant was a runaway who was staying without permission in a vacant house. The owner of the house came to check on the property, and left his wallet in the house when he left. Defendant stole the wallet and was charged with burglary. Held: The child did not enter the house with the intent to commit a crime, and while he committed trespassing, he did not commit burglary. // J.J.D. v. S., 973 So. 2d 1254 (2d DCA 2008), 33 F.L.W. D454 (2/8/2008)
The court errs in failing to give burglary as a lesser of burglary with an assault. The lesser is a mandatory lesser included offense, and the failure to give the instruction get reversal. // Hartley v. S., 27 So. 3d 233 (2d DCA 2010), 35 F.L.W. D397 (2/17/2010)
The court errs in failing to give burglary as a lesser of burglary with an assault. The lesser is a mandatory lesser included offense, and the failure to give the instruction get reversal. // Hartley v. S., 27 So. 3d 233 (2d DCA 2010), 35 F.L.W. D397 (2/17/2010)
Gloves are not burglary tools, and the fact that defendant was wear gloves during a burglary will not support possession of burglary tools. // The fact that defendant possessed a flashlight when he was arrested is insufficient to prove possession of burglary tools in the absence of any evidence that he used the flashlight to commit the burglary. // Brooks v. S., 23 So. 3d 1227 (2d DCA 2009), 34 F.L.W. D2386 (11/18/2009)
Gloves are not burglary tools, and the fact that defendant was wear gloves during a burglary will not support possession of burglary tools. // The fact that defendant possessed a flashlight when he was arrested is insufficient to prove possession of burglary tools in the absence of any evidence that he used the flashlight to commit the burglary. // Brooks v. S., 23 So. 3d 1227 (2d DCA 2009), 34 F.L.W. D2386 (11/18/2009)
Defendant’s acts of prying screens off of a house with long nails is sufficient to convict him of possession of burglary tools. // Keys v. S., 949 So. 2d 1080 (2d DCA 2007), 32 F.L.W. D358 (1/31/2007)
Defendant’s acts of prying screens off of a house with long nails is sufficient to convict him of possession of burglary tools. // Keys v. S., 949 So. 2d 1080 (2d DCA 2007), 32 F.L.W. D358 (1/31/2007)
When defendant enters a house in an attempt to avoid capture while fleeing from a lawful arrest, he commits the crime of burglary with the intent to commit the underlying crime of resisting without violence. // Young v. S., 13 So. 3d 537 (3d DCA 2009), 34 F.L.W. D1352 (7/1/2009)
When defendant enters a house in an attempt to avoid capture while fleeing from a lawful arrest, he commits the crime of burglary with the intent to commit the underlying crime of resisting without violence. // Young v. S., 13 So. 3d 537 (3d DCA 2009), 34 F.L.W. D1352 (7/1/2009)
Alleging that defendant “discharged a firearm or destructive device” while committing a burglary of a vehicle is a sufficient allegation to charge armed burglary and no error is shown in instructing the jury and allowing them to convict on that crime when defendant did not move to dismiss prior to trial. // Duarte v. S., ___ So. 3d ___, 36 F.L.W. D838 (3d DCA 4/20/2011)
Alleging that defendant “discharged a firearm or destructive device” while committing a burglary of a vehicle is a sufficient allegation to charge armed burglary and no error is shown in instructing the jury and allowing them to convict on that crime when defendant did not move to dismiss prior to trial. // Duarte v. S., ___ So. 3d ___, 36 F.L.W. D838 (3d DCA 4/20/2011)
The stairway leading from the walkway to the front porch of a building is not within the structure itself, and is not in the curtilege of the building. He thus cannot be convicted of trespassing in a structure. // B.W. v. S., 973 So. 2d 657 (3d DCA 2008), 33 F.L.W. D437 (2/6/2008)
The stairway leading from the walkway to the front porch of a building is not within the structure itself, and is not in the curtilege of the building. He thus cannot be convicted of trespassing in a structure. // B.W. v. S., 973 So. 2d 657 (3d DCA 2008), 33 F.L.W. D437 (2/6/2008)
Consent to enter is an affirmative defense to burglary. The defense has the burden of presenting evidence showing consent, and the state must then disprove the defense beyond a reasonable doubt. Where defendant testifies that a specific person gave consent for him to enter an apartment, and that person does not testify and the consent is not otherwise rebutted, the court errs in failing to enter a JOA. // Metales v. S., 963 So. 2d 989 (4th DCA 2007), 32 F.L.W. D2241 (9/19/2007)
Consent to enter is an affirmative defense to burglary. The defense has the burden of presenting evidence showing consent, and the state must then disprove the defense beyond a reasonable doubt. Where defendant testifies that a specific person gave consent for him to enter an apartment, and that person does not testify and the consent is not otherwise rebutted, the court errs in failing to enter a JOA. // Metales v. S., 963 So. 2d 989 (4th DCA 2007), 32 F.L.W. D2241 (9/19/2007)
(See Remor v. S., 991 So. 2d 957 (4th DCA 2008), 33 F.L.W. D2209 (9/17/2008) for discussion of the sufficiency of circumstantial evidence to convict for attempted burglary.)
(See Remor v. S., 991 So. 2d 957 (4th DCA 2008), 33 F.L.W. D2209 (9/17/2008) for discussion of the sufficiency of circumstantial evidence to convict for attempted burglary.)
Trespass is a category 2 lesser of burglary of a conveyance. When the information alleges that defendant unlawfully entered a conveyance with the intent to commit grand theft, the court errs in refusing to give trespassing as a lesser. // Hannah v. S., 42 So. 3d 951 (4th DCA 2010), 35 F.L.W. D1970 (9/1/2010)
Trespass is a category 2 lesser of burglary of a conveyance. When the information alleges that defendant unlawfully entered a conveyance with the intent to commit grand theft, the court errs in refusing to give trespassing as a lesser. // Hannah v. S., 42 So. 3d 951 (4th DCA 2010), 35 F.L.W. D1970 (9/1/2010)
The PRR statute in effect at the time of the offense is the statute that controls his sentencing. // Under the 2003 statute, defendant cannot get a PRR sentence for burglary of a conveyance with an assault. // Gorham v. S., 988 So. 2d 152 (4th DCA 2008), 33 F.L.W. D1930 (8/6/2008)
The PRR statute in effect at the time of the offense is the statute that controls his sentencing. // Under the 2003 statute, defendant cannot get a PRR sentence for burglary of a conveyance with an assault. // Gorham v. S., 988 So. 2d 152 (4th DCA 2008), 33 F.L.W. D1930 (8/6/2008)
Defendant entered an open convenience store, went into an “employees only” room and stole money. He was charged with burglary of an occupied structure. Held: Under Johnson v. S., 786 So. 2d 1162 (Fla. 2001), entry into a portion of an open business which is not open to the public constitutes burglary. However, the court errs in allowing the enhancement, and defendant can be convicted only of burglary of a structure. // Davis v. S., 988 So. 2d 1125 (4th DCA 2008), 33 F.L.W. D1838 (7/23/2008)
Defendant entered an open convenience store, went into an “employees only” room and stole money. He was charged with burglary of an occupied structure. Held: Under Johnson v. S., 786 So. 2d 1162 (Fla. 2001), entry into a portion of an open business which is not open to the public constitutes burglary. However, the court errs in allowing the enhancement, and defendant can be convicted only of burglary of a structure. // Davis v. S., 988 So. 2d 1125 (4th DCA 2008), 33 F.L.W. D1838 (7/23/2008)
Defendant stole a safe from a business, and inside the safe was a gun. He opened the safe after removing it, and sold the gun. Held: Defendant did not “arm” himself during the burglary, and the court errs in failing to JOA the armed burglary charge. // Barrett v. S., 983 So. 2d 795 (4th DCA 2008), 33 F.L.W. D1657 (6/25/2008)
Defendant stole a safe from a business, and inside the safe was a gun. He opened the safe after removing it, and sold the gun. Held: Defendant did not “arm” himself during the burglary, and the court errs in failing to JOA the armed burglary charge. // Barrett v. S., 983 So. 2d 795 (4th DCA 2008), 33 F.L.W. D1657 (6/25/2008)
At defendant’s burglary trial, the court instructed the jury on the third element that defendant must have the fully formed conscious intent “to commit the crime of burglary”. Appellate counsel did not raise this error. Held: Counsel was ineffective for failing to raise the fundamental error, and conviction is reversed. // Guerra v. S., 10 So. 3d 1164 (4th DCA 2009), 34 F.L.W. D1073 (5/27/2009)
At defendant’s burglary trial, the court instructed the jury on the third element that defendant must have the fully formed conscious intent “to commit the crime of burglary”. Appellate counsel did not raise this error. Held: Counsel was ineffective for failing to raise the fundamental error, and conviction is reversed. // Guerra v. S., 10 So. 3d 1164 (4th DCA 2009), 34 F.L.W. D1073 (5/27/2009)
Trespass is a category II lesser of burglary, and when the information alleges all the elements of trespassing, the court errs in failing to give it as a lesser. // Bordes v. S., 34 So. 3d 215 (4th DCA 2010), 35 F.L.W. D1054 (5/12/2010)
Trespass is a category II lesser of burglary, and when the information alleges all the elements of trespassing, the court errs in failing to give it as a lesser. // Bordes v. S., 34 So. 3d 215 (4th DCA 2010), 35 F.L.W. D1054 (5/12/2010)
Where defendant is found working on a car early in the morning after the car was stolen, he lied about his identity, and he testified that he had just bought the car but had not documents regarding the sale, the evidence is insufficient to rebut the presumptions regarding the possession of recently stolen property. // (See this case for discussion of the presumptions that pertain to the possession of recently stolen property as they pertain to theft and burglary cases.) // Kerr v. S., 954 So. 2d 692 (4th DCA 2007), 32 F.L.W. D1020 (4/18/2007)
Where defendant is found working on a car early in the morning after the car was stolen, he lied about his identity, and he testified that he had just bought the car but had not documents regarding the sale, the evidence is insufficient to rebut the presumptions regarding the possession of recently stolen property. // (See this case for discussion of the presumptions that pertain to the possession of recently stolen property as they pertain to theft and burglary cases.) // Kerr v. S., 954 So. 2d 692 (4th DCA 2007), 32 F.L.W. D1020 (4/18/2007)
Trespass is a category I lesser of burglary of a dwelling, and the court reversibly errs in failing to give it when requested. // McCloud v. S., ___ So. 3d ___, 36 F.L.W. D7771 (4th DCA 4/13/2011)
Trespass is a category I lesser of burglary of a dwelling, and the court reversibly errs in failing to give it when requested. // McCloud v. S., ___ So. 3d ___, 36 F.L.W. D7771 (4th DCA 4/13/2011)
Evidence of a single fingerprint taken from the point of entry into a home and located in a position indicating the glass was gripped from the outside, plus testimony that the victim did not know the defendant and the defendant did not have permission to enter, is sufficient to withstand a motion for JOA. // Potts v. S., ___ So. 3d ___, 36 F.L.W. D666 (4th DCA 3/30/2011)
Evidence of a single fingerprint taken from the point of entry into a home and located in a position indicating the glass was gripped from the outside, plus testimony that the victim did not know the defendant and the defendant did not have permission to enter, is sufficient to withstand a motion for JOA. // Potts v. S., ___ So. 3d ___, 36 F.L.W. D666 (4th DCA 3/30/2011)
The court errs in admitting hearsay regarding defendant’s claimed actions in deceiving a security guard to allow him onto the victim’s property. Where the security guard does not testify, and the security tape does not show what was done or said to obtain entry, hearsay regarding a claimed deception is not harmless. // Andrews v. S., 973 So. 2d 1280 (4th DCA 2008), 33 F.L.W. D559 (2/20/2008)
The court errs in admitting hearsay regarding defendant’s claimed actions in deceiving a security guard to allow him onto the victim’s property. Where the security guard does not testify, and the security tape does not show what was done or said to obtain entry, hearsay regarding a claimed deception is not harmless. // Andrews v. S., 973 So. 2d 1280 (4th DCA 2008), 33 F.L.W. D559 (2/20/2008)
When there is only one entry, only one burglary occurs. Thus, when defendant enters one vehicle and assaults two people, only one burglary occurs. // Gorham v. S., 968 So. 2d 717 (4th DCA 2007), 32 F.L.W. D2877 (12/5/2007)
When there is only one entry, only one burglary occurs. Thus, when defendant enters one vehicle and assaults two people, only one burglary occurs. // Gorham v. S., 968 So. 2d 717 (4th DCA 2007), 32 F.L.W. D2877 (12/5/2007)
Defendant attended a party at a house while the owners were away on vacation, and drank beer and smoked marijuana in the house. He was charged with burglary. Held: While there was sufficient evidence to show that defendant entered without permission, there was insufficient evidence to show that when he entered he intended to commit a crime in that house, and the adjudication for burglary is reversed. // P.D.T. v. S., 996 So. 2d 919 (4th DCA 2008), 33 F.L.W. D2770 (12/3/2008)
Defendant attended a party at a house while the owners were away on vacation, and drank beer and smoked marijuana in the house. He was charged with burglary. Held: While there was sufficient evidence to show that defendant entered without permission, there was insufficient evidence to show that when he entered he intended to commit a crime in that house, and the adjudication for burglary is reversed. // P.D.T. v. S., 996 So. 2d 919 (4th DCA 2008), 33 F.L.W. D2770 (12/3/2008)
Defendant entered a jewelry store when it was open for business, smashed a display cabinet, and stole jewelry. He was charged with burglary and other crimes. Held: Defendant was in an area of the store that was open to the public, and he does not commit burglary when he commits a crime in that area. // Colbert v. S., 49 So. 3d 819 (4th DCA 2010), 35 F.L.W. D2624 (12/1/2010)
Defendant entered a jewelry store when it was open for business, smashed a display cabinet, and stole jewelry. He was charged with burglary and other crimes. Held: Defendant was in an area of the store that was open to the public, and he does not commit burglary when he commits a crime in that area. // Colbert v. S., 49 So. 3d 819 (4th DCA 2010), 35 F.L.W. D2624 (12/1/2010)
Possession of property recently stolen in a burglary will support an inference that the person stole the properly unless his possession is sufficiently explained. Possession of stolen property will also support an inference that defendant committed the burglary in which the property was stolen. // Davis v. S., 48 So. 3d 176 (4th DCA 2010), 35 F.L.W. D2595 (11/24/2010)
Possession of property recently stolen in a burglary will support an inference that the person stole the properly unless his possession is sufficiently explained. Possession of stolen property will also support an inference that defendant committed the burglary in which the property was stolen. // Davis v. S., 48 So. 3d 176 (4th DCA 2010), 35 F.L.W. D2595 (11/24/2010)
The court does not err in including the “remaining in” language of the burglary instruction where the evidence shows that the defendant was found crouched behind a car in the driveway with items having been removed from a shed. The evidence is sufficient to show a surreptitious entry. // Newsome v. S., 19 So. 3d 1091 (4th DCA 2009), 34 F.L.W. D2044 (10/7/2009)
The court does not err in including the “remaining in” language of the burglary instruction where the evidence shows that the defendant was found crouched behind a car in the driveway with items having been removed from a shed. The evidence is sufficient to show a surreptitious entry. // Newsome v. S., 19 So. 3d 1091 (4th DCA 2009), 34 F.L.W. D2044 (10/7/2009)
The state presented evidence that six homes located near each other were burglarized within two days of each other. The state connected defendant to two of the burglaries, and argued that defendant was guilty of the other four because they occurred around the same time, were located nearby, and the method of entry was the same. Held: The court errs in refusing to JOA the four burglaries not connected to defendant. The circumstantial evidence was insufficient to sustain a conviction. // Horne v. S., 997 So. 2d 1262 (4th DCA 2009), 34 F.L.W. D90 (1/5/2009)
The state presented evidence that six homes located near each other were burglarized within two days of each other. The state connected defendant to two of the burglaries, and argued that defendant was guilty of the other four because they occurred around the same time, were located nearby, and the method of entry was the same. Held: The court errs in refusing to JOA the four burglaries not connected to defendant. The circumstantial evidence was insufficient to sustain a conviction. // Horne v. S., 997 So. 2d 1262 (4th DCA 2009), 34 F.L.W. D90 (1/5/2009)
The court properly denies a motion for JOA in a burglary of a dwelling charge where the evidence shows that defendant entered a fenced-in yard a dug up a tree. // Frazier v. S., 970 So. 2d 929 (4th DCA 2008), 33 F.L.W. D173 (1/2/2008)
The court properly denies a motion for JOA in a burglary of a dwelling charge where the evidence shows that defendant entered a fenced-in yard a dug up a tree. // Frazier v. S., 970 So. 2d 929 (4th DCA 2008), 33 F.L.W. D173 (1/2/2008)
Defendant may not be convicted of both burglary with an assault, and battery, for a single incident when the information does not allege whether defendant was charged with burglary with an assault, burglary with a battery, or both. // Young v. S., 43 So. 3d 876 (5th DCA 2010), 35 F.L.W. D1984 (9/3/2010)
Defendant may not be convicted of both burglary with an assault, and battery, for a single incident when the information does not allege whether defendant was charged with burglary with an assault, burglary with a battery, or both. // Young v. S., 43 So. 3d 876 (5th DCA 2010), 35 F.L.W. D1984 (9/3/2010)
An attached carport is either part of the curtilage of a home or is an “attached porch” for purposes of the burlgary statute,and defenadnt is properly convicted of burglary of a dwelling when he enters the carport and attempts to steal an air conditioning unit located within it. // Ferrara v. S., 19 So. 3d 1033 (5th DCA 2009), 34 F.L.W. D1942 (9/25/2009)
An attached carport is either part of the curtilage of a home or is an “attached porch” for purposes of the burlgary statute,and defenadnt is properly convicted of burglary of a dwelling when he enters the carport and attempts to steal an air conditioning unit located within it. // Ferrara v. S., 19 So. 3d 1033 (5th DCA 2009), 34 F.L.W. D1942 (9/25/2009)
Defendant is properly convicted of burglary of an occupied structure when he enters a closed store where police had set up a stakeout waiting for him. The fact that the only occupants were police officers does not prevent conviction for burglary of an occupied structure. // Reidy v. S., 965 So. 2d 1177 (5th DCA 2007), 32 F.L.W. D2035 (8/24/2007)
Defendant is properly convicted of burglary of an occupied structure when he enters a closed store where police had set up a stakeout waiting for him. The fact that the only occupants were police officers does not prevent conviction for burglary of an occupied structure. // Reidy v. S., 965 So. 2d 1177 (5th DCA 2007), 32 F.L.W. D2035 (8/24/2007)
Defendant and victim were co-lessees on a house. They had a fight, and defendant moved out. The victim removed the defendant from the lease and changed the locks. Defendant later returned and entered the house during an argument and took a computer. Held: The facts were such that an issue was raised whether the victim’s possessory interest was superior to the defendant’s, and the court did not err in refusing to grant a JOA. Defendant is properly convicted of burglary. // Washington v. S., 11 So. 3d 980 (5th DCA 2009), 34 F.L.W. D925 (5/8/2009)
Defendant and victim were co-lessees on a house. They had a fight, and defendant moved out. The victim removed the defendant from the lease and changed the locks. Defendant later returned and entered the house during an argument and took a computer. Held: The facts were such that an issue was raised whether the victim’s possessory interest was superior to the defendant’s, and the court did not err in refusing to grant a JOA. Defendant is properly convicted of burglary. // Washington v. S., 11 So. 3d 980 (5th DCA 2009), 34 F.L.W. D925 (5/8/2009)
The ten-year mandatory in §775.087(2)(a)1 applies only to the offenses enumerated in the statute. // Burglary of a conveyance with an assault is not subject to the 10-year mandatory, and is subject to only a three-year mandatory. // Figueroa v. S., 10 So. 3d 173 (5th DCA 2009), 34 F.L.W. D697 (4/3/2009)
The ten-year mandatory in §775.087(2)(a)1 applies only to the offenses enumerated in the statute. // Burglary of a conveyance with an assault is not subject to the 10-year mandatory, and is subject to only a three-year mandatory. // Figueroa v. S., 10 So. 3d 173 (5th DCA 2009), 34 F.L.W. D697 (4/3/2009)
Where defendant enters the yard of the victim and steal items leaning against the house, and there is no testimony showing that the yard was enclosed, the court errs in finding the child guilty of burglary. // J.L. v. S., ___ So. 3d ___, 36 F.L.W. D626 (5th DCA 3/25/2011)
Where defendant enters the yard of the victim and steal items leaning against the house, and there is no testimony showing that the yard was enclosed, the court errs in finding the child guilty of burglary. // J.L. v. S., ___ So. 3d ___, 36 F.L.W. D626 (5th DCA 3/25/2011)
Defendant cannot be convicted of four counts of burglary while armed with a destructive device, and four counts of possession or discharge of a destructive device when the verdict forms do not allow the jury to distinguish between “possession” and “making” the destructive device. Because defendant could have been convicted of possessing the device while committing the armed burglary, the convictions violate double jeopardy rules. // Reeves v. S., ___ So. 3d ___, 36 F.L.W. D418 (5th DCA 2/25/2011)
Defendant cannot be convicted of four counts of burglary while armed with a destructive device, and four counts of possession or discharge of a destructive device when the verdict forms do not allow the jury to distinguish between “possession” and “making” the destructive device. Because defendant could have been convicted of possessing the device while committing the armed burglary, the convictions violate double jeopardy rules. // Reeves v. S., ___ So. 3d ___, 36 F.L.W. D418 (5th DCA 2/25/2011)
A structure that is designed to be occupied by people lodging therein at night, which was used as a dwelling in the past, had an intact roof, but was undergoing interior renovations that rendered it temporarily uninhabitable, is still a “dwelling” for burglary purposes. // Michael v. S., 51 So. 3d 574 (5th DCA 2010), 36 F.L.W. D19 (12/23/2010)
A structure that is designed to be occupied by people lodging therein at night, which was used as a dwelling in the past, had an intact roof, but was undergoing interior renovations that rendered it temporarily uninhabitable, is still a “dwelling” for burglary purposes. // Michael v. S., 51 So. 3d 574 (5th DCA 2010), 36 F.L.W. D19 (12/23/2010)
When defendant is charged with committing a burglary by “remaining in” a dwelling, the state must prove that defendant was licensed or invited to enter, and then remained with the intent to commit a forcible felony. Where the state fails to prove that defendant was invited into or licensed to enter the premises, the court errs in denying a JOA. // (See this case for extensive discussion of “remaining in” burglaries under §819.02(1)(b)2.c) // Harris v. S., 48 So. 3d 922 (5th DCA 2010), 35 F.L.W. D2562 (11/19/2010)
When defendant is charged with committing a burglary by “remaining in” a dwelling, the state must prove that defendant was licensed or invited to enter, and then remained with the intent to commit a forcible felony. Where the state fails to prove that defendant was invited into or licensed to enter the premises, the court errs in denying a JOA. // (See this case for extensive discussion of “remaining in” burglaries under §819.02(1)(b)2.c) // Harris v. S., 48 So. 3d 922 (5th DCA 2010), 35 F.L.W. D2562 (11/19/2010)
The state is not required in a burglary case to allege the specific offense defendant intended to commit in the structure, and the court is not required to instruct on a specific offense. // The court commits reversible error when it tells the jury that it could convict if it found the defendant had “a fully formed intent to commit the offense of burglary in the structure.” // Rivera v. S., 992 So. 2d 361 (5th DCA 2008), 33 F.L.W. D2346 (10/3/2008)
The state is not required in a burglary case to allege the specific offense defendant intended to commit in the structure, and the court is not required to instruct on a specific offense. // The court commits reversible error when it tells the jury that it could convict if it found the defendant had “a fully formed intent to commit the offense of burglary in the structure.” // Rivera v. S., 992 So. 2d 361 (5th DCA 2008), 33 F.L.W. D2346 (10/3/2008)
The crawl space under a house supported by a cinderblock foundation is part of the house, and defendant is properly convicted of burglary of a structure for entering the crawl space to steal copper pipe. // Tindall v. S., 997 So. 2d 1260 (5th DCA 2009), 34 F.L.W. D76 (1/2/2009)
The crawl space under a house supported by a cinderblock foundation is part of the house, and defendant is properly convicted of burglary of a structure for entering the crawl space to steal copper pipe. // Tindall v. S., 997 So. 2d 1260 (5th DCA 2009), 34 F.L.W. D76 (1/2/2009)
Child abuse can be both a separate charge and serve as the predicate felony for felony murder where there are repeated act of abuse that result in death. However, where there is a single act that resulted in the child’s death (here, a single stab wound), there is no aggravated child abuse that can serve as the predicate felony for felony murder. // (But see dissents, arguing that because the underlying felony of aggravated child abuse cannot serve as a predicate for felony murder when only a single act caused the death, a general verdict of guilty to first degree murder when the jury was instructed on both felony murder and premeditated murder should not stand.) // •Brooks v. S., 918 So. 2d 181 (Fla. 2005), 30 F.L.W. S481 (6/23/2005)
Child abuse can be both a separate charge and serve as the predicate felony for felony murder where there are repeated act of abuse that result in death. However, where there is a single act that resulted in the child’s death (here, a single stab wound), there is no aggravated child abuse that can serve as the predicate felony for felony murder. // (But see dissents, arguing that because the underlying felony of aggravated child abuse cannot serve as a predicate for felony murder when only a single act caused the death, a general verdict of guilty to first degree murder when the jury was instructed on both felony murder and premeditated murder should not stand.) // •Brooks v. S., 918 So. 2d 181 (Fla. 2005), 30 F.L.W. S481 (6/23/2005)
Giving the standard aggravated child abuse instruction which defines “maliciously” as “wrongfully, intentionally, without legal justification or excuse,” is fundamental error in a case where the element is disputed at trial. When there is no dispute about the element, the failure to give a proper instruction is not fundamental error. // Regardless of whether the evidence is overwhelming, the error can be fundamental if the inaccurate instruction is pertinent or material to what the jury must consider to convict. When the inaccurate definition reduced the state’s burden of proof, the inaccurate instruction is material to what the jury had to consider to convict. // Fundamental error is not subject to harmless error review. By its nature, fundamental error is harmful. If it were not harmful, it could not be fundamental. // The decision in this case is applicable to all cases not yet final. It is not to be applied retroactively to cases that are final before the issuance of this opinion. // The proper definition of “malice” is “ill will, hatred, spite, an evil intent.” // •Reed v. S., 837 So. 2d 366 (Fla. 2002), 27 F.L.W. S1045 (12/19/2002) // receding from State v. Clark, 614 So. 2d 453 (Fla. 1992)
Giving the standard aggravated child abuse instruction which defines “maliciously” as “wrongfully, intentionally, without legal justification or excuse,” is fundamental error in a case where the element is disputed at trial. When there is no dispute about the element, the failure to give a proper instruction is not fundamental error. // Regardless of whether the evidence is overwhelming, the error can be fundamental if the inaccurate instruction is pertinent or material to what the jury must consider to convict. When the inaccurate definition reduced the state’s burden of proof, the inaccurate instruction is material to what the jury had to consider to convict. // Fundamental error is not subject to harmless error review. By its nature, fundamental error is harmful. If it were not harmful, it could not be fundamental. // The decision in this case is applicable to all cases not yet final. It is not to be applied retroactively to cases that are final before the issuance of this opinion. // The proper definition of “malice” is “ill will, hatred, spite, an evil intent.” // •Reed v. S., 837 So. 2d 366 (Fla. 2002), 27 F.L.W. S1045 (12/19/2002) // receding from State v. Clark, 614 So. 2d 453 (Fla. 1992)
A parent has a privilege to administer “reasonable” or “non-excessive” corporal punishment to his child in a prosecution for 3d degree felony child abuse. “Reasonable” or “non-excessive” corporal punishment is a “typical spanking.” // The parental privilege is an affirmative defense that is available to a parent is a prosecution for child abuse. There is no privilege to commit aggravated child abuse. // •Raford v. S., 828 So. 2d 1012 (Fla. 2002), 27 F.L.W. S781 (9/26/2002) // approving Raford v. S., 792 So. 2d 476 (4th DCA 2001) and McDonald v. S., 785 So. 2d 640 (2d DCA 2001) // reversing Wilson v. S., 744 So. 2d 1237 (1st DCA 1999) // see Kama v. S., 507 So. 2d 154 (1st DCA 1987)
A parent has a privilege to administer “reasonable” or “non-excessive” corporal punishment to his child in a prosecution for 3d degree felony child abuse. “Reasonable” or “non-excessive” corporal punishment is a “typical spanking.” // The parental privilege is an affirmative defense that is available to a parent is a prosecution for child abuse. There is no privilege to commit aggravated child abuse. // •Raford v. S., 828 So. 2d 1012 (Fla. 2002), 27 F.L.W. S781 (9/26/2002) // approving Raford v. S., 792 So. 2d 476 (4th DCA 2001) and McDonald v. S., 785 So. 2d 640 (2d DCA 2001) // reversing Wilson v. S., 744 So. 2d 1237 (1st DCA 1999) // see Kama v. S., 507 So. 2d 154 (1st DCA 1987)
The use of the undefined term “mental injury” in section 827.03 does not render the section vague. The term is defined in §39.01(44), and that definition is incorporated as the definition in the criminal statute. // (See this case for extensive discussion of the use of related non-criminal statutes to provide definitions for criminal provisions.) // Dufresne v. S., 826 So. 2d 282 (Fla. 2002), 27 F.L.W. S728 (9/5/2002)
The use of the undefined term “mental injury” in section 827.03 does not render the section vague. The term is defined in §39.01(44), and that definition is incorporated as the definition in the criminal statute. // (See this case for extensive discussion of the use of related non-criminal statutes to provide definitions for criminal provisions.) // Dufresne v. S., 826 So. 2d 282 (Fla. 2002), 27 F.L.W. S728 (9/5/2002)
