Hannah v. State Of Fla.
| Decision Date | 01 September 2010 |
| Docket Number | No. 312008CF00415A.,No. 4D09-1039,4D09-1039,312008CF00415A. |
| Parties | DENNIS HANNAH, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Court of Appeal of Florida (US) |
Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
Defendant, Dennis Hannah, appeals his conviction and sentence for burglary of a conveyance and third-degree grand theft. Defendant raises four issues on appeal for which we hold two have merit. The first issue is whether the trial court committed reversible error by refusing to instruct the jury on trespass, a lesser-included offense to burglary. The second issue is whether the trial court erred by failing to inquire into defense counsel's conflict of interest and provide defendant with notice and an opportunity to be heard on the issue. Answering both questions in the affirmative, we reverse defendant's convictions on both charges and remand for a new trial.
At trial, the following facts were adduced from the State's witnesses. Several employees of S&S Janitorial Services were recoating the floor at a local drug store. While they were recoating the floor, one of the employees saw defendant banging on the front door of the store. The S&S employee walked over to the door and told defendant the store was closed. Defendant appeared angry and intoxicated. Defendant walked away from the door and headed towards the direction where the S&S employees had parked their company truck and trailer. At the conclusion of their work, the employees returned to their vehicle and checked the trailer, which was unlocked. They discovered that a floor buffer, two propane tanks, and a set of red scrubbing pads were missing from the trailer. While one of the employees contacted the police, the other proceeded to look for defendant in the direction of a nearby Publix food store. Thereafter, defendant appeared from behind the Publix. The S&S employee approached defendant, who smelled of vomit, and askedwhether he took the floor buffer from the S&S trailer. Defendant denied taking the buffer and began to walk away.
After speaking to the S&S employees, the officer who responded to the call drove to the Publix and discovered the floor buffer, two propane tanks, and two red scrubbing pads in the rear of the Publix where defendant was last seen. The officer also observed a fresh pool of vomit in the area where the floor buffer was found and a beer can underneath the floor buffer. Defendant's beard contained remnants of vomit, which matched the vomit found on the ground near the floor buffer. The officer did not see any other individuals in the area. All of the local businesses were also closed at the time, and the parking lots were empty. Both S&S employees confirmed that no one else was in the area between the time they first made contact with defendant and observed him appear from behind the Publix. Thereafter, defendant was arrested and charged with burglary and grand theft.
At trial, defense counsel requested an instruction on trespass as a lesser-included offense of burglary. The State objected, contending that if the jury found that defendant entered the trailer and did not take anything, then the jury would just find him not guilty of both counts. The trial court declined to give the instruction on the basis that there was no evidence presented of trespass. The jury found defendant guilty of both charges.
Defendant argues that the trial court erroneously refused to instruct the jury on trespass as a lesser-included offense of burglary. "'[A] trial court has wide discretion in instructing the jury, and the court's decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal.'" Carpenter v. State, 785 So. 2d 1182, 1199-1200 (Fla. 2001) (quoting James v. State, 695 So. 2d 1229, 1236 (Fla. 1997)).
Thomas v. State, 591 So. 2d 259, 260 (Fla. 4th DCA 1991) (quoting Wilcott v. State, 509 So. 2d 261, 262 (Fla. 1987)) (alteration in original); see also Piccioni v. State, 833 So. 2d 247, 248 (Fla. 4th DCA 2002) ("When requested by the defendant, an instruction on a category two permissive lesser-included offense must be given where '(1) the information alleges all of the statutory elements of the permissive lesser-included offense, and (2) there is some evidence adduced at trial establishing all of the elements.'" (quoting Wimberly v. State, 697 So. 2d 1272, 1273 (Fla. 4th DCA 1997) (emphasis added)).
Trespass is defined as "the willful entry or remaining in a structure or conveyance[.]" Thomas, 591 So. 2d at 260; see also § 810.08(1), Fla. Stat. (2008). The information here charged defendant with burglary of a conveyance and grand theft. Specifically, with regards to burglary, the information alleged that defendant "did unlawfully enter or remain in a conveyance, the property of S&S Janitorial Services... with the intent to commit an offense therein, to wit: a theft[.]" In Henig v. State, 820 So. 2d 1037, 1038-39 (Fla. 4th DCA 2002), This court held that the above language was sufficient to allege the statutory elements of trespass. Id. at 1039; see also Piccioni, 833 So. 2d at 248. As in Henig, the information here sufficiently alleged the statutory elements of trespass under defendant's burglary of a conveyance charge.
The circumstantial evidence here showed that defendant entered the trailer with the intent to commit the offense of theft. Stated differently, the State presented competent, substantial evidence that defendant committed burglary, which would also support a conviction for trespass. Therefore, trespass, as defined above, was a lesser-included offense of the crime charged in this case, burglary. "Since [trespass] was the nextlower lesser-included offense of the crime [defendant] was convicted of, the failure to instruct on it constituted reversible error." Thomas, 591 So. 2d at 260 (citing Wilcott, 509 So. 2d at 262); see also Henig, 820 So. 2d at 1039; Piccioni, 833 So. 2d at 248-49 ().
Next, defendant argues that a potential conflict of interest existed because his trial counsel previously represented one of the S&S employees, and that the trial court's failure to inquire into the conflict of interest entitles him to a new trial. In support of his arguments, defendant cites, among other cases, to Thomas v. State, 785 So. 2d 626 (Fla. 2d DCA 2001), and Forsett v. State, 790 So. 2d 474 (Fla. 2d DCA 2001).
"A criminal defendant's Sixth Amendment right to the effective assistance of counsel encompasses the right to counsel free of ethical conflicts." Thomas, 785 So. 2d at 628 (citing Wood v. Georgia, 450 U.S. 261, 271 (1981)). "'When defense counsel makes a pretrial disclosure of a possible conflict of interest with the defendant, the trial court must either conduct an inquiry to determine whether the asserted conflict ofinterest will impair the defendant's right to the effective assistance of counsel or appoint separate counsel.'" Id. (quoting Lee v. State, 690 So. 2d 664, 667 (Fla. 1st DCA 1997)); see also Larzelere v. State, 676 So. 2d 394, 403 (Fla. 1996) ().
In Thomas, the defendant was convicted for escape, battery on a law enforcement officer, and resisting an officer with violence. 785 So. 2d at 627. Before trial, the defendant's trial counsel informed the trial court that he had previously represented a prosecution witness and that he wanted the witness instructed to not mention anything about the past representation. Id. "The trial court found there was no conflict because the past representation had no connection to the present case." Id. The witness, who was one of the defendant's cell-mates, testified that the defendant "slugged" a deputy, took her key, and ran to the end of a hallway. Id. at 627-28. "Defense counsel briefly cross-examined [the witness] regarding how many people were in the cell and whether [he] believed ...
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