NOLAN JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed burglary conviction and habitual felony offender designation, rejecting claims that denial of theft jury instruction was reversible error and that Apprendi challenges to habitual offender status lack merit.
Theft is not a lesser-included offense of burglary, and denial of a jury instruction on theft was proper where the charging pleading lacked elements necessary for theft conviction.
[1] Theft is not a lesser-included offense of burglary under Florida law, and a trial court properly denies a jury instruction on theft where the charging pleading lacks elem…
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Join FLexlaw to unlock all legal intelligenceNolan Jones was convicted of burglary and designated a habitual felony offender. He challenged the trial court's denial of his request for a jury inst…
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PER CURIAM.
Nolan Jones challenges his conviction and sentence for burglary. We affirm finding it unnecessary to comment at length on Jones’ claim that the trial court reversibly erred when it denied his request for a jury instruction on theft. Theft is neither a category 1 or category 2 lesser offense of burglary. Florida Standard Jury Instructions in Criminal Cases. Moreover, because the allegations contained in the charging pleading did not include the elements necessary for a conviction of theft, the denial of the request for a jury instruction regarding theft was correct. See, generally, Taylor v. State, 608 So. 2d 804 (Fla.1992); McClendon v. State, 765 So. 2d 247 (Fla. 1st DCA 2000); Nesbitt v. State, 819 So. 2d 993 (Fla. 5th DCA 2002).
Jones further argues that his designation as a habitual felony offender is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.E.2d 435 (2000). Such an argument has been repeatedly rejected. See Jones v. State, 791 So. 2d 580 (Fla. 1st DCA 2001); see also Saldo v. State, 789 So. 2d 1150 (Fla. 3d DCA 2001); Gordon v. State, 787 So. 2d 892 (Fla. 4th DCA 2001); Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001).
Accordingly, Jones’ judgment of conviction and sentence is AFFIRMED.
AFFIRMED.
WOLF, VAN NORTWICK and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brown v. State, 847 So. 2d 570 (Fla. 1st DCA 2003)…PER CURIAM. AFFIRMED. Jones v. State, 829 So. 2d 351 (Fla. 1st DCA 2002); Graham v. State, 822 So. 2d 576 (Fla. 1st DCA 2002); Jones v. State, 791 So. 2d 580 (Fla. 1st DCA 2001). See also Foster v. State, 820 So. 2d 365 (Fla. 1st DCA 2002). ALLEN, C.J., and BOOTH and BARFIELD, JJ., concur.…
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Wright v. State, 780 So. 2d 216 (Fla. 5th DCA 2001)
- Taylor v. State, 608 So. 2d 804 (Fla. 1992)
- Benny Jones v. State, 791 So. 2d 580 (Fla. 1st DCA 2001)
- Walker v. State, 791 So. 2d 580 (Fla. 1st DCA 2001)
- Saldo v. State, 789 So. 2d 1150 (Fla. 3d DCA 2001)
- Gordon v. State, 787 So. 2d 892 (Fla. 4th DCA 2001)
- Nesbitt v. State, 819 So. 2d 993 (Fla. 5th DCA 2002)
- McCLENDON v. State, 765 So. 2d 247 (Fla. 1st DCA 2000)