Brlecic v. State, 83-2130
| Decision Date | 31 August 1984 |
| Docket Number | No. 83-2130,83-2130 |
| Parties | Wayne A. BRLECIC, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, Bartow, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Wayne A. Brlecic appeals from his convictions and sentences for criminal mischief, first degree burglary, and aggravated assault.
The state filed two separate informations against appellant. In case # 83-761, appellant was charged with criminal mischief, a violation of section 806.13, Florida Statutes (1981). In case # 83-1050, appellant was originally charged in a two-count information with first degree burglary, a violation of section 810.02, Florida Statutes (1981), and aggravated assault, a violation of section 784.021, Florida Statutes (1981). The information in case # 83-1050 was subsequently amended, however, to allege that
WAYNE BRLECIC ... unlawfully and without invitation or license did enter or remain in that certain structure, the dwelling of Ingrid Gause, located at 1711 James Street, New Port Richey, Pasco County, Florida, the property of Ingrid Gause with the intent to commit an offense therein, to-wit [sic]: assault, the said structure at the time not open to the public; contrary to Chapter 810.02(3), Florida Statutes, and against the peace and dignity of the State of Florida.
... WAYNE BRLECIC ... did then and there intentionally and unlawfully threaten to do violence to Ingrid Gause while then having the apparent ability to carry out said threat and did create a well-founded fear in Ingrid Gause that such violence was imminent and in the commission of said assault did use a deadly weapon, to-wit [sic]: a knife, the said WAYNE BRLECIC at the time of the said assault not having the intent to kill Ingrid Gause....
Pursuant to a plea agreement, appellant, through his counsel, entered guilty pleas to criminal mischief, first degree burglary, and aggravated assault. It was agreed that appellant would receive thirty years for the burglary and five years each for criminal mischief and aggravated assault, all sentences to run concurrently. During the plea hearing, the trial court specifically asked appellant if he understood that the burglary charge was a first degree felony carrying a possible sentence of life imprisonment, to which appellant responded in the affirmative. In addition, the factual basis established in conjunction with the plea reveals the allegation that appellant committed an assault while in the dwelling. The court also conducted the following colloquy with appellant:
The court ultimately sentenced appellant as agreed and recommended that, if released on parole, appellant make full restitution to the victim of the criminal mischief.
On appeal, appellant challenges the sufficiency of the burglary count of the amended information. To convict a defendant of first degree felony burglary, the state must plead and prove not only the essential elements of the burglary as defined in section 810.02(1), but also that, in the course of committing the burglary, the defendant either made an assault upon a person or was armed or armed himself within the structure with explosives or a dangerous weapon. § 810.02(2), Fla.Stat. (1983). Appellant contends the burglary count only charges a second degree felony burglary as it does not allege that an assault was in fact committed during the course of the burglary and, thus, the count is insufficient to support the thirty-year sentence for a first degree felony. We are aware that the amended information does not contain such an allegation; nevertheless, we affirm appellant's conviction and sentence for first degree felony burglary.
In Burns v. State, 300 So.2d 317 (Fla. 2d DCA 1974), the defendant was charged under section 811.11, Florida Statutes (1971), with larceny of a calf. He later pled guilty to grand larceny. He alleged on appeal that he could not be adjudicated guilty of a crime with which he was not charged. This court declined to treat the adjudication as void and held that the proceedings, conducted in open court and duly recorded, constituted a mutually agreeable amendment of the accusatory writ.
In Shanklin v. State, 369 So.2d 620 (Fla. 2d DCA) cert. denied, 378 So.2d 348 (Fla.1979), the defendant was charged with battery of a law enforcement officer. The information stated that appellant did " 'unlawfully and intentionally touch or strike a law enforcement officer....' " The defendant pled guilty and was placed on probation. On appeal from the revocation of probation, Shanklin attacked his conviction on the basis that the court originally...
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Hope v. State, 90-1691
...the state was relying on, along with copies of the underlying convictions, pled to the charge. We hold, consistent with Brlecic v. State, 456 So.2d 503 (Fla. 2d DCA 1984), that pleading to an offense acknowledging the existence of unpled essential elements, implicitly amends the information......
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Bradley v. State, 5D06-3577.
...finding that the plea and proceedings in open court constituted a mutually agreeable amendment of the information. In Brlecic v. State, 456 So.2d 503 (Fla. 2d DCA 1984), the court again held that "the factual basis given in connection with the plea supplied the missing element of the first ......
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Billiot v. State, 97-2458
... ... Burns v. State, 300 So.2d at 318. In Brlecic v. State, the court again held that "the factual basis given in connection with the plea supplied the missing element of the first degree burglary ... ...
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Bradley v. Sec'y, Dep't of Corr., CASE NO. 6:09-cv-994-Orl-35DAB
...constituted an express waiver of any defect in the charging information. See Bradley, 3 So. 3d at 1171; see also Brlecic v. State, 456 So. 2d 503, 505 (Fla. 2d DCA 1984) (holding that "the factual basis given in connection with the plea supplied the missing element of the first degree burgl......