Evanco v. State, s. X--128 and X--129
| Decision Date | 27 August 1975 |
| Docket Number | Nos. X--128 and X--129,s. X--128 and X--129 |
| Citation | 318 So.2d 535 |
| Parties | Michael Eric EVANCO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Selig I. Goldin, Goldin & Turner, Gainesville, for appellant.
Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
These two cases were consolidated for the purpose of appeal.
In X--128 appellant was tried on an information charging him with breaking and entering a building on the property of Sound City, Inc., with intent to commit a misdemeanor, to-wit, petty larceny. The trial court instructed the jury, at the request of the State and over the defendant's objection, that entering into an enclosed building of another, having been forbidden to enter by the lawful occupant, pursuant to Florida Statutes, Section 821.01(1), was a lesser included offense within the crime charged in the information, and the appellant was convicted of such trespass after warning.
In X--129, appellant, who was under a sentence of probation for a previous, unconnected crime, had his probation revoked and was adjudged guilty and sentenced on the prior offense.
The instruction on the crime of trespass after warning was predicated solely upon the casual testimony of the president of the company which was in possession of the premises claimed to have been entered, in reply to a question as to whether appellant had been given permission to be in the place after closing hours: 'No, as a matter of fact, at an incident prior to that, he was told never to come by the store again', without any explanation of this so-called warning either as to time, place or circumstances, except that at one time appellant was an employee of the occupant of the building.
Apart from the fact that we have grave doubts that the alleged statement was a sufficient warning under Section 821.01(1), we hold that the offense of trespass after warning, pursuant to the above Section, is not a lesser included offense of the crime of breaking and entering with intent to commit the misdemeanor of petty larceny. Clearly, it is not a Necessarily included offense in the major offense charged by the accusatory pleading; nor is it an offense which may be included in the offense charged, in view of the accusatory pleading and the evidence at the trial, since the statutory offense of trespass after warning necessarily required a warning, an element which is not essential to the...
To continue reading
Request your trial
-
Corn v. State, 46922
...an information or indictment charges a crime, '(n)o essential element . . . should be left to inference.' Id. § 29. Evanco v. State, 318 So.2d 535 (Fla.App.1st Dist. 1975); Haley v. State, 315 So.2d 525 (Fla.App.2d Dist. 1975). See Long v. State, 92 So.2d 259 (Fla. 1957); Smith v. State, 32......
-
Ray v. State
...So.3d 730 (Fla.2d DCA 1978), cert. denied, 370 So.2d 461 (Fla.1979); Walker v. State, 351 So.2d 382 (Fla.4th DCA 1977); Evanco v. State, 318 So.2d 535 (Fla.1st DCA 1975). In all of the cases finding that an erroneous instruction produced a conviction for a crime not charged, only one (Hicks......
-
Cohen v. Katsaris
...3rd DCA 1977); Hornsby v. State, 352 So.2d 954 (Fla. 1st DCA 1976); Minor v. State, 329 So.2d 30 (Fla. 2nd DCA 1976); Evanco v. State, 318 So.2d 535 (Fla. 1st DCA 1975). When the lack of such a warning construction of Section 810.08(1) or its forerunners is considered in conjunction with th......
-
State v. Dye, 49579
...Corn v. State, 332 So.2d 4, 12 (Fla.1976) (Hatchett, J., dissenting). Smith v. State, 324 So.2d 699 (Fla.1st DCA 1976); Evanco v. State, 318 So.2d 535 (Fla.1st DCA 1975); Haley v. State, 315 So.2d 525 (Fla.2d DCA 1975); Rodgers v. State, 325 So.2d 48 (Fla.2d DCA 1975); Causey v. State, 307 ......