McKIVER v. State
2011 Fla. App. LEXIS 1584
| Fla. Dist. Ct. App. | 2011Background
- McKiver was convicted of burglary of a dwelling for January 2, 2009, entering Carmichael's home with intent to commit an offense therein.
- Trial evidence included Carmichael’s testimony of the break-in, neighbor Jordan’s observations of McKiver and Doles near the house, and Doles’ testimony that McKiver entered the home and took property.
- McKiver’s fingerprints were found on the victim’s front screen door; Carmichael testified she did not know McKiver or authorize entry.
- Defense requested a trespass instruction (category two, permissive lesser-included) and the state objected; the court denied the request.
- After jury deliberations, the jury received no lesser-included offenses on the verdict form and found him guilty as charged.
- The First District reversed, holding the trial court erred in not instructing on trespass and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by not instructing on trespass as a lesser-included offense | McKiver | State | Yes; error in denying trespass instruction |
| Whether the error was per se reversible or subject to harmless error analysis | McKiver | State | Harmless error analysis applied; not per se reversible |
| Whether simple burglary should have been instructed as a lesser-included offense | McKiver | State | Not dispositive to result; court discussed but resolved on trespass |
Key Cases Cited
- State v. Montgomery, 39 So. 3d 252 (Fla. 2010) (category-one necessary lesser-included offenses required)
- Wimberly v. State, 498 So. 2d 929 (Fla. 1986) (distinguishes category-one vs category-two offenses)
- Khianthalat v. State, 974 So. 2d 359 (Fla. 2008) (conditions for giving permissive lesser-included instructions)
- Clark v. State, 43 So. 3d 814 (Fla. 1st DCA 2010) (restricts harmless error analysis where applicable)
- Abreau v. State, 363 So. 2d 1063 (Fla. 1978) (bright-line harmless error framework for omitted instructions)
- DiGuilio v. State, 491 So. 2d 1129 (Fla. 1986) (harmless error standard focusing on effect on the verdict)
- Sanders v. State, 946 So. 2d 953 (Fla. 2006) (omitted instruction may be reversible or harmless)
- Pena v. State, 901 So. 2d 781 (Fla. 2005) (harmless error considerations in lesser-included offenses)
- In re Standard Jury Instructions in Criminal Cases-Report No. 2007-11, 986 So. 2d 563 (Fla. 2008) (classification of offenses as category-one vs category-two)