ALPHANSO E. HARRISON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Harrison was convicted of burglary after admittedly trespassing, with the sole disputed issue being whether he entered with intent to commit theft. The appellate court reversed because the trial judge's jury instruction on burglary was circular and eliminated the crucial element of intent to commit a different offense, constituting fundamental error.
The trial judge's circular instruction that burglary consists of entering premises with the intent to commit burglary eliminated the crucial element of intent to commit another, different offense and constitutes fundamental error requiring reversal. Such failure to instruct on a material element of an offense is fundamental error that need not be preserved below.
[1] A jury instruction that defines burglary as entering a structure with the intent to commit burglary constitutes fundamental error requiring a new trial.
[2] Failure to instruct the jury on any element of an offense that is pertinent or material to a conviction is fundamental error that need not be preserved below.
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Establishes the legal standard for fundamental error in jury instructions on elements of a crime
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Join FLexlaw to unlock all legal intelligenceHarrison admittedly trespassed on premises. The disputed issue at trial was whether he entered with the intent to commit theft, which would constitute…
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SCHWARTZ, Chief Judge.
The only disputed issue at the appellant’s trial was whether he entered the premises upon which he had admittedly trespassed with the intent to commit the offense of theft, as alleged, and was therefore guilty of burglary as he was charged and convicted. In these circumstances, the trial judge’s instruction that he was guilty of burglary if he had a “fully formed conscious intent to commit the offense of burglary in [the] structure” [e.s.], even though unobjected to below, requires a new trial. It is apodictic that the failure to instruct as to any element of an offense which is “pertinent or material to what the jury must consider in order to convict,” Stewart v. State, 420 So. 2d 862, 863 (Fla.1982), amounts to fundamental error which need not be preserved below. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997).
That rule is plainly applicable in this case, in which the totally circular instruction which was actually given — that burglary consists of entering premises with the intent to commit a burglary — entirely eliminated the crucial element of the intent to commit another, different offense. § 810.02(1), Fla. Stat. (1999); see Viveros, 699 So. 2d at 822. Compare, e.g., Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983) (no fundamental error in failing to instruct on element of a crime conceded to be present).
We note that the trial court also committed clear error by permitting the contents of the defendant’s sworn motion to dismiss to be introduced into evidence (as a purported admission) in the state’s case in chief.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Leveritt v. State, 817 So. 2d 891 (Fla. 1st DCA 2002)…element of the crime here charged, I would hold that the erroneous jury instruction constituted fundamental error which need not have been preserved by an objection. See Sochor, 619 So. 2d at 290; Steele, 561 So. 2d at 644-45; and Harrison v. State, 743 So. 2d 178, 179 (Fla. 3d DCA 1999). Finally, because the issue of intoxication and the validity of the blood test was the central disputed issue at trial and the erroneous instruction may have contributed to the conviction, I would conclude that the error was…
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Valentine v. State, 774 So. 2d 934 (Fla. 5th DCA 2001)…conveyance.” See Lawrence v. State, 746 So. 2d 1252 (Fla. 5th DCA 1999) (“at the time of entering or remaining in the structure [Defendant] had a fully-formed conscious intent to commit the offense of a burglary of a structure”); Harrison v. State, 743 So. 2d 178 (Fla. 3d DCA 1999) (jury instructed it had to find the defendant had a “fully-formed, conscious intent to commit the offense of burglary in [the] structure”); Davis v. State, 736 So. 2d 27 (Fla. 4th DCA 1999) (jury instructed it had to find the defe…1 / 2
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LEE v. State, 958 So. 2d 521 (Fla. 2d DCA 2007)…a sworn Florida Rule of Criminal Procedure Rule 3.850 motion. Id. Other district courts have held that the circular burglary instruction constitutes fundamental error. Lawrence v. State, 746 So. 2d 1252, 1253 (Fla. 5th DCA 1999); Harrison v. State, 743 So. 2d 178, 178 (Fla. 3d DCA 1999). In fact, the Fourth District in Bruce v. State, 879 So. 2d 686, 687-88 (Fla. 4th DCA 2004), held that appellate counsel was ineffective for failing to argue on direct appeal that a circular burglary instruction almost identi…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sandstrom v. Montana, 442 U.S. 510 (U.S. 1979)
- Stewart v. State, 420 So. 2d 862 (Fla. 1982)
- Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)
- Viveros v. State, 699 So. 2d 822 (Fla. 4th DCA 1997)
- Rogers v. Trigg, 459 U.S. 1149 (U.S. 1983)
- Hoover v. Mississippi, 459 U.S. 1149 (U.S. 1983)