Thomas v. StateThomas v. State
Appellant was charged with, and convicted of, burglary of a conveyance with intent to commit theft therein.
He raises four points on appeal, one of which requires reversal.
At the charge conference, appellant requested an instruction on petit theft as a lesser-included offense of the burglary charge. The trial court gave the requested instruction. After the jury retired and had been deliberating for approximately 2 hours, the trial court determined it was error to instruct the jury on petit theft as a lesser-included offense of the crime. Appellant requested that a trespass instruction be substituted as a lesser-included offense but that was denied on the ground that the jury had already retired and therefore opposing counsel had no opportunity to argue the law and facts as they applied to trespass. The jury was recalled and told to disregard the instruction on petit theft. The jurors were told that they could now find appellant guilty or not guilty of burglary.
Trespass is a permissive or category 2 lesser-included offense of burglary of a conveyance. A category 2 lesser-included offense “must be instructed upon when the pleadings and evidence demonstrate that the lesser offense is included in the offense charged.” Wilcott v. State, 509 So.2d 261, 262 (Fla. 1987).
The information in this case charged appellant with burglary of a conveyance with intent to commit theft. The evidence showed that appellant entered a parked vehicle with the intent to commit the offense of theft. Thus, trespass, defined as the willful entry or remaining in a structure or conveyance under
Notwithstanding the law of Wilcott, we would have affirmed this case because the defendant did not request the trespass instruction until after the jury had already retired to consider its verdict. See
REVERSED AND REMANDED.
DOWNEY, LETTS and WARNER, JJ., concur.