Jones v. State, 84-2024
| Decision Date | 05 August 1986 |
| Docket Number | No. 84-2024,84-2024 |
| Citation | 492 So.2d 1124,11 Fla. L. Weekly 1705 |
| Parties | 11 Fla. L. Weekly 1705 Daniel JONES, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Henry H. Harnage, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Jacki B. Geartner, Asst. Atty. Gen., for appellee.
Before BARKDULL, HUBBART and FERGUSON, JJ.
Appellant's point on appeal, as may be stated otherwise, is that he should be acquitted because the jury found him guilty of an attempt to commit a burglary whereas the proof showed that he had clearly completed the offense.
Central to the technical argument is Florida Rule of Criminal Procedure 3.510(a) which provides:
Upon an indictment or information upon which the defendant is to be tried for any offense the jury may convict the defendant of:
(a) an attempt to commit such offense if such attempt is an offense and is supported by the evidence. The judge shall not instruct the jury if there is no evidence to support such attempt and the only evidence proves a completed offense.
The evidence shows that in the early morning of March 6, 1984, a burglar alarm investigator responded to an alarm at the Whitecraft Industries warehouse building in Miami, Florida and found the inside burglar alarm monitor ringing, as well as evidence of an unauthorized entry. He went outside, relocked the doors, and waited for police officers to arrive. Within minutes, the officers arrived and sent a police dog inside the premises. The dog alerted to the defendant's presence, and the defendant was apprehended in hiding.
A subsequent investigation of the building revealed that a large amount of office equipment had been removed from its usual place and stacked near the door, some of it in cardboard boxes, as if in preparation for transporting to another place. Defendant's fingerprints were found on the equipment and the containers.
Although the defendant presented no evidence at trial, his attorney argued to the jury, both in opening and closing, that the defendant had gone to the Whitecraft warehouse earlier in the day in an intoxicated state seeking employment; that he had fallen asleep in the building and set off the alarm attempting to leave after the building was locked; and that he had no intent to commit any offense while in the building.
At the conclusion of all the evidence the trial court gave the following instruction, which was objected to by the defendant and which gives rise to this appeal:
Before you can find the defendant guilty of an attempt to commit burglary, the State must prove the following two elements beyond a reasonable doubt: One. Daniel Jones did some act towards committing the crime of burglary that went beyond just thinking or talking about it. Two. He would have committed the crime except that someone prevented him from committing the crime of burglary or he failed.
Defendant contends here that the proof showed that he entered a structure with the intent to commit an offense therein at a time when the premises were not open to the public and he was not authorized to be there, which satisfies all the statutory elements of a completed burglary offense. The trial court's justification for the attempt instruction was that there was evidence that the defendant was prevented or failed in depriving the owner of possession of its property. Defendant's correct counter is that a theft of the property was not required to complete the burglary offense.
The defendant entered a plea of not guilty, demanded a trial by jury and defended against the charge of burglary. In overruling the defendant's objection to the attempt instruction, the trial court made an assessment of the evidence and concluded that a jury question was presented on the issue of whether a completed burglary offense had been committed. It is asserted here as grounds for a new trial, in a reverse of the usual argument, that it was error not to rule as a matter of law that a completed burglary was proved and therefore error to submit the lesser offense of attempted burglary to the jury. Further, the defendant contends that at a new trial he can be tried for neither burglary nor attempted burglary, only a trespass.
Whether Rule 3.510(a) creates a right to not have a jury instructed on an attempt as the lesser offense of the charged offense where the evidence shows that the offense was completed is the threshold question. We hold that it does not. Indeed the rule is construed by the supreme court not as creating any new rights, but simply as a tool to streamline a trial by eliminating the need to instruct as to a lesser offense "when there is a total lack of evidence of the lesser offense." In re Use by the Trial Courts of the Standard Jury Instructions In Criminal Cases, 431 So.2d 594, 597 (Fla.), modified, 431 So.2d 599 (Fla.1981). Rule 3.510(a) does not require or even permit the trial court to invade the province of the jury. Id. Thus a trial court's determination that the attempt instruction should be given to the jury because there is not a total lack of evidence of the lesser offense, even if a reviewing court disagrees, does not, without more, constitute reversible error.
Defendant raises the possibility that the jury found the evidence sufficient to convict of the charged offense but exercised its power of pardon, Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA), aff'd, 340 So.2d 928 (Fla.1976), to return a verdict of guilty on the lesser offense. Having raised the possibility, defendant then undercuts it with the suggestion that Rule 3.510(a) effectively abrogates the pardon power. No authority is cited or is to be found in the case law, or in notes to the rule, that the rule was intended to overturn the substantive law of jury pardon.
In reviewing an appeal from the giving of an instruction on an attempt to commit an offense, where an attempt to commit the charged offense is a lesser offense, the inquiry should be whether, in light of all the circumstances, the instruction was so confusing as to prejudice the defendant. See Cooper v. State, 448 So.2d 6 (Fla. 3d DCA) (Ferguson, J., concurring), rev. dismissed, 450 So.2d 485 (Fla.1984). Even if we agreed that an attempt instruction was unnecessary on the facts of this case, the record does not reflect, nor does the defendant contend, that the instruction confused or misled the jury. Cf. Colon v. State, 430 So.2d 965 (Fla. 2d DCA 1983) (); Blitch v. State, 427 So.2d 785 (Fla. 2d DCA 1983) (); Barnes v. State, 348 So.2d 599 (Fla. 4th DCA 1977) ().
An accused who is convicted of an attempt as the lesser of a charged offense will not be heard to complain that he should be set free merely because the evidence shows that he was guilty of the greater offense.
Affirmed.
I agree that the defendant's conviction for petit theft should be affirmed, as no point on appeal is raised concerning this conviction. I respectfully dissent, however, from the court's decision to affirm the defendant's conviction for attempted burglary. As to the latter, I would reverse the attempted burglary conviction and remand the cause to the trial court for a new trial on the lesser offense of trespass because, in my view, the trial court committed reversible error in instructing the jury, over objection, on the offense of attempted burglary. This is so because (a) there was utterly no evidence to support such a charge at trial and the only evidence presented to the jury proved a completed burglary; (b) Fla.R.Crim.P. 3.510(a) specifically prohibits a jury instruction for a criminal attempt under these circumstances; and (c) the defendant was convicted of attempted burglary based on this improper jury charge, and, accordingly, stands convicted of an offense which is not a proper lesser offense within the main charge.
Rule 3.510(a) of the Florida Rules of Criminal Procedure states the governing law on when a jury charge may be given in a criminal case on the lesser offense of an attempt to commit the crime for which the defendant is charged, to wit:
In re Florida Rules of Criminal Procedure, 403 So.2d 979 (Fla.1981) (emphasis added). The underscored provisions of the above rule represent the October 1, 1981 amendments to the said rule.
The above rule as amended--applicable when this trial was conducted--represents a significant change over the predecessor Rule 3.510 which had been in effect as a rule since 1968 1 and, prior to that, as a statute since 1939. See § 919.16, Fla.Stat. (1939-1967) (since repealed). Rule 3.510 of the Florida Rules of Criminal Procedure--prior to the October 1, 1981 amendments thereto--provided as follows:
Under the...
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