Minor v. StateMinor v. State
Appellant was charged with entering without breaking a dwelling house with intent to commit a misdemeanor, to wit: assault. The court instructed the jury that they might find appellant guilty of either entering without breaking or trespass after warning. The jury returned a verdict finding appellant guilty of trespass after warning as proscribed by
With respect to the crime of еntering without breaking, the crime of trespass after warning is a lesser included offense of the typе described as category (4) in Brown v. State, Fla. 1968, 206 So.2d 377. Trespass aftеr warning may or may not be included in the crime of entering without breaking “depending upon the partiсular allegations of the accusatory рleading and the proofs tendered in suppоrt thereof.” Brown v. State, supra.
In State v. Anderson, Fla. 1972, 270 So.2d 353, the Supreme Court rejected thе notion that a category (4) offense encompasses lesser offenses within the general scope of the charge made. The court noted that an instruction on a category (4) lesser offense was not appropriаte unless the accusatory pleading alleges all of the essential elements of the lеsser offense.
In the instant case, assuming that the stаte proved all the elements of the crime of trespass after warning, the essential elеment of warning was not alleged in the information. Hеnce, trespass after warning did not qualify as a lеsser offense within category (4). In Evanco v. State, Fla.App.1st, 1975, 318 So.2d 535, the court reached a similar conclusion when it reversed а conviction for trespass after warning on аn information charging breaking and entering with intent to commit a misdemeanor, to wit: petit larceny.
The state‘s primary argument in this case centers оn the fact that no objection was made to the state‘s requested instruction on trespass аfter warning. A similar contention has been rejeсted in three recent cases. Haley v. State, Fla. App.2d, 1975, 315 So.2d 525; O‘Neal v. State, Fla.App.2d, 1975, 308 So.2d 569 (overruled on other grounds); Priester v. State, Fla.App.4th, 1974, 294 So.2d 421. Thus, in Haley v. State, supra, this court said:
“The State аrgues that appellants waived this issue becаuse the record fails to reveal a timely objection to the jury instructions. This case does not merely involve erroneous instructions. The defendants were convicted of a crime not сharged in the informations. This is fundamental error... .”
The judgment is reversed with directions that appellant be discharged from the crime charged in the information.
McNULTY, C.J., and SCHEB, J., concur.