Gamble v. State, 95-1364

• Decision Date: 01 November 1995
• Docket Number: No. 95-1364,95-1364
• Citation: 661 So.2d 1283
• Parties: 20 Fla. L. Weekly D2439 Ernest GAMBLE, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida District Court of Appeals

Page 1283

661 So.2d 1283

20 Fla. L. Weekly D2439

Ernest GAMBLE, Petitioner, v. STATE of Florida, Respondent.

No. 95-1364.

District Court of Appeal of Florida,

Fourth District.

Nov. 1, 1995.

Richard L. Jorandby, Public Defender, and Cherry Grant, Assistant Public Defender, West Palm Beach, for petitioner.

Robert A. Butterworth, Attorney General, Tallahassee, and John Tiedemann, Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

We grant this petition for writ of certiorari and quash the order of the circuit court affirming petitioner's conviction in the county court for trespass of an occupied structure, a first-degree misdemeanor.

Petitioner was charged in county court by information with violation of section 810.08(1), Florida Statutes (1993), the general trespass statute. The information specifically charged the petitioner with a second-degree misdemeanor. The information alleged, in pertinent part, as follows:

did unlawfully and wilfully, without being authorized, licensed or invited, enter upon or remain in a structure or conveyance, the property of FERRIN SIGNS, contrary to Florida Statute 810.08(1). (2 DEG MISD).

On the morning of trial, the state announced that it was proceeding under section 810.08(2)(b), Florida Statutes (1993), a first-degree misdemeanor. Petitioner initially objected, after which the court, counsel for the state, and counsel for the defense conferred discussing, among other things, an appropriate jury instruction. At that point, petitioner's counsel stated to the court that he didn't "have a problem" with a jury instruction as to whether his client entered an occupied structure, the first-degree misdemeanor, but he did thereafter continue his objection to his client's being prosecuted with the first-degree misdemeanor. In addition, the state made no attempt to amend the information, either in writing or orally, notwithstanding the specific language of the information: "(2 DEG MISD) " (emphasis added).

After being convicted of trespass into an occupied structure, a first-degree misdemeanor, petitioner appealed to the circuit court where the state expressly conceded error. Notwithstanding the state's concession of error, the circuit court affirmed the petitioner's conviction and sentence.

Petitioner argues that in affirming his conviction, notwithstanding the state's express concession of error, the circuit court departed from the essential requirements of law resulting in a miscarriage of...