Gian-Grasso v. State, 4D04-3990.
| Decision Date | 30 March 2005 |
| Docket Number | No. 4D04-3990.,4D04-3990. |
| Parties | Nicolo J. GIAN-GRASSO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nicolo J. Gian-Grasso, Avon Park, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
Nicolo Gian-Grasso appeals the trial court's summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. The motion raised several claims of ineffective assistance of counsel. We hold that the trial court's summary denial of the motion was proper as to all but one of the claims. Gian-Grasso was convicted after jury trial of burglary with a battery. During jury deliberations, the jury sent the judge a note asking whether it could convict of both trespass and battery, which were listed individually as lesser-included offenses on the verdict form, or if they had to choose only one. The court instructed the jury that they could check only one box on the verdict form. Counsel agreed with the court's decision.
Counsel's failure to object meant the issue was not preserved for appellate review. Giangrasso v. State, 793 So.2d 71, 73 (Fla. 4th DCA 2001). Gian-Grasso's rule 3.850 motion claimed trial counsel was ineffective in not objecting to this issue.
We hold that the trial court erred in summarily denying this claim because the claim is sufficient and not refuted by the record. Nothing in the record indicates that counsel's acquiescence was part of an "all-or-nothing" trial strategy. Davis v. State, 648 So.2d 1249 (Fla. 4th DCA 1995).
A defendant is entitled to have a jury consider convicting of the two separate component offenses of a compound offense such as burglary with a battery. As explained in Bledsoe v. State, 764 So.2d 927, 929 (Fla. 2d DCA 2000), "`Burglary with a battery' is a legislative combination of two separate common law crimes." A judgment could be entered on both the lesser-included offenses of trespass and battery because the information included the facts necessary to support convictions for both offenses. Id.
Where a defendant is charged with burglary, a jury could find that the defendant had no criminal intent upon entering but subsequently formed the intent to commit an offense, such as, in this case, battery. In this situation, the defendant has committed a trespass and a battery but not a burglary. A defendant is entitled to have the jury...
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In re Standard Jury Instructions in Criminal Cases-Report Number
...a second conviction on the lesser included offenses of assault or battery depending on the crime charged. See Gian–Grasso v. State,899 So.2d 392 (Fla. 4th DCA 2005).This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1997 [697 So.2d 84], 2003 [850 So.2d 1272], 2007 [96......
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In re Standard Jury Instructions in Criminal Cases—report Number, SC12–449.
...a second conviction on the lesser included offenses of assault or battery depending on the crime charged. See Gian–Grasso v. State, 899 So.2d 392 (Fla. 4th DCA 2005). This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1997 [697 So.2d 84], 2003 [850 So.2d 1272], 2007 [......
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In re Standard Jury Instructions in Criminal Cases—report 2018-05
... ... in Criminal Cases, Daytona Beach, Florida; and Bart Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner PER CURIAM. The Supreme Court Committee ... See See Gian-Grasso v. State, 899 So.2d 392 (Fla. 4th DCA 2005). This instruction was adopted in 1981 and amended in ... ...
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Barriner v. Sec'y, Dep't of Corr.
...consider the alternative of convicting of both component offenses, rather than burglary or just one of the component offenses.899 So. 2d 392 (Fla. 4th DCA 2005); see also Stuckey v. State, 972 So. 2d 918 (Fla. 5th DCA 2007) ("[W]hen a defendant is tried for a compound offense, he is entitle......