ANTHONY HARTLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Hartley was convicted of: count one, felony battery with great bodily harm and count two, burglary of a conveyance with a battery. He contends that we should reverse his conviction for count two because the trial court denied his request for a jury instruction on burglary, a necessarily lesser-included offense of burglary of a conveyance with a battery. The State concedes the error.
When requested, trial courts are required to instruct juries on necessarily lesser-included offenses of the charged offense. State v. Abreau, 363 So.2d 1063 (Fla.1978); Miller v. State, 870 So.2d 15 (Fla. 2d DCA 2003). Simple burglary is a necessarily lesser-included offense of burglary with a battery. Because the jury did not have the opportunity to consider whether Mr. Hartley was guilty of the lesser offense of burglary, we affirm his conviction for count one, but reverse his judgment and sentence for count two and remand for a new trial.
Affirmed in part, reversed in part, and remanded.
CASANUEVA, C.J., and CRENSHAW, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cannon v. State, 315 So. 3d 732 (Fla. 4th DCA 2021)…ttery. If the defendant had only intended to commit a battery, his act would not legally constitute burglary of a conveyance with a battery, but would constitute the lesser included offense of simple burglary of a conveyance. See Hartley v. State, 27 So. 3d 233, 233 (Fla. 2d DCA 2010) (“Simple burglary is a necessarily lesser-included offense of burglary with a battery.”); § 810.02(1)(b), Fla. Stat. (2017). We distinguish the state’s cited case of Reed v. State, 603 So. 2d 69 (Fla. 4th DCA 1992), where we…
Authorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Miller v. State, 870 So. 2d 15 (Fla. 2d DCA 2003)