State v. Simmons, 80 So. 3d 1089

Simmons charged with burglary of a conveyance; trial followed a sting operation in a business parking lot.
Officers left an unoccupied pickup with a box in the bed to lure theft; Simmons was observed approaching and grabbing the box.
Simmons retrieved the box, was arrested, and the jury was instructed on attempted burglary as a lesser-included offense.
Simmons initially requested, then withdrew, an attempted burglary instruction; the State requested it and it was given, along with a trespass instruction.
Jury found Simmons guilty of attempted burglary of a conveyance; post-trial motions for judgment of acquittal or new trial were denied for reasons not clearly preserved until later.
At sentencing, Simmons sought a downward departure based on alleged enticement by law enforcement; the court granted it and imposed a sentence below the guideline minimum.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether enticement by police supported a downward departure	State argues facts justify departure	Simmons argues enticement lacks support	Downward departure reversed; enticement not supported by competent evidence
Whether the attempted burglary instruction was properly given	State contends entitlement to instruction	Simmons failed to preserve contemporaneous objection	Instruction error not preserved; affirmed

State v. Subido, 925 So.2d 1052 (Fla. 5th DCA 2006) (mixed standard of review for downward departures; substantial evidence required)
State v. Mann, 866 So.2d 179 (Fla. 5th DCA 2004) (standard for reviewing downward departure)
State v. Stephenson, 973 So.2d 1259 (Fla. 5th DCA 2008) (downward departure not limited to enumerated grounds)
State v. Steadman, 827 So.2d 1022 (Fla. 3d DCA 2002) (entrapment vs. downward departure considerations)
State v. Weaver, 957 So.2d 586 (Fla.2007) (fundamental error review only in rare cases)
State v. Delva, 575 So.2d 643 (Fla.1991) (definition of fundamental error)