Butler v. State, 379 So. 2d 715

COBB, Judge.

Appellant was charged with burglary of a dwelling in violation of Section 810.02(3), Florida Statutes (1977). At the jury instruction conference, appellant‘s attorney requested an instruction on both first degree misdemeanor trespass and second degree misdemeanor trespass. The trial court refused to instruct on second degree misdemeanor trespass. The jury found appellant guilty of first degree misdemeanor trespass. Appellant contends that the trial court erred in refusing to instruct the jury on second degree misdemeanor trespass. We agree. Second degree misdemeanor trespass is a lesser included offense; therefore, the trial court should have given the requested instruction. Brown v. State, 206 So.2d 377 (Fla. 1968).

Since the offense that the judge did not instruct on was not two or more steps from the offense that appellant was convicted of, the failure to give the requested instruction was not harmless error. Delaine v. State, 262 So.2d 655 (Fla. 1972); State v. Abreau, 363 So.2d 1063 (Fla. 1978).

REVERSED and REMANDED for new trial.

ORFINGER and SHARP, JJ., concur.

Case Details

Case Name: Butler v. State

Court Name: District Court of Appeal of Florida

Date Published: Feb 13, 1980

Citations: 379 So. 2d 715; 78-1610/T4-162

Docket Number: 78-1610/T4-162

Court Abbreviation: Fla. Dist. Ct. App.