Jones v. State
| Decision Date | 10 January 1996 |
| Docket Number | No. 94-2398,94-2398 |
| Citation | 666 So.2d 960 |
| Parties | 21 Fla. L. Weekly D140 Larry JONES, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Wanda Raiford and Michael J. Neimand, Assistants Attorney General, for appellee.
Before HUBBART and JORGENSON and COPE, JJ.
This is an appeal by the defendant Larry Jones from a final judgment of conviction and sentence for grand theft of a motor vehicle which was entered below based on an adverse jury verdict. The central question presented for review is whether it was reversible error for the trial court, based on this record, to refuse to instruct the jury, at the defendant's request, on the category 2 permissive lesser included offense of trespass in a conveyance. Because (1) a jury instruction on a category 2 permissive lesser included offense [i.e., trespass in a conveyance in this case] does not lie unless all the statutory elements of the lesser offense are alleged in the indictment or information, and (2) one of the statutory elements of trespass in a conveyance was not alleged in the information on which the defendant was tried below, we conclude that the trial court committed no reversible error in refusing to give a jury instruction on this lesser offense. We further conclude that no reversible error is shown by the remaining points on appeal raised by the defendant, and, accordingly, we affirm.
The defendant Larry Jones was charged by information with the third-degree felony of grand theft of a motor vehicle [Sec. 812.014(1), (2)(c)(4), Fla.Stat. (1991) ]. The state's evidence at trial tended to show that on September 2, 1992, in the late evening hours, the complainant Shirley Byrd drove her car to one of the dog tracks in Dade County; she thereafter visited the track for about half an hour. When she was ready to leave the area, she discovered that her car was missing and reported it to the police as stolen.
The next day in the late afternoon hours, Officer Luis Condom of the Miami Police Department was traveling in his squad car in north Dade County when he observed a car run a red light; this car later turned out to be the car stolen the previous day from Shirley Byrd. Officer Condom pursued, noticed that the car's vent window was broken out, ran a radio check on the car's license number, and learned that the car was stolen. After some back-up police cars arrived to assist, Officer Condom stopped the stolen car and discovered that the defendant was the driver, the steering column of the car had been badly damaged, and there was also a passenger, Jaime Ramon, in the front seat.
Officer Condom then ordered both the defendant and the passenger out of the stolen car. Upon exiting the car, the defendant was patted down, handcuffed and placed in the back of the police car by Officer Condom; another officer took custody of the passenger. Officer Condom testified at trial that, while in the back of the police car, the defendant orally admitted that he knew the car was stolen because of the damage to the car.
At trial, the defense called Reginald Allen as a witness who testified that he was with the defendant earlier in the day prior to the defendant's arrest. He stated that he saw Jaime Ramon [the passenger in the car at time of arrest] drive up in the car [which was, in fact, the stolen car involved in this case] and state, in the defendant's presence, that the car belonged to Ramon's boss and that he [Ramon] was doing some mechanical work on it. Ramon then drove Allen and the defendant to Allen's place of employment where Allen got out of the car. Another defense witness confirmed that Ramon had driven the subject car to the defendant's house and had a conversation with the defendant. Based on this testimony, the defendant argued for an outright acquittal below because he allegedly did not know that the car was being driven without the owner's permission and had no knowledge it was stolen.
During the jury charge conference at trial, the defendant requested that the trial court charge the jury on the lesser offense of trespass in a conveyance [Sec. 810.08(1), Fla.Stat. (1991) ], a second-degree misdemeanor; the trial court refused the requested instruction. The defendant was thereafter convicted by the jury as charged; the trial court adjudicated the defendant guilty of grand theft of a motor vehicle, sentenced him to five years in the state penitentiary, and ordered him to pay the complainant $866.24 in restitution. The defendant appeals.
This court has, in effect, held that the misdemeanor of trespass in a conveyance [Sec. 810.08(1), Fla.Stat. (1991) ] is a category 2 permissive lesser included offense within the charged offense of grand theft of a motor vehicle [Sec. 812.014(1), (2)(c)(4), Fla.Stat. (1991) ]. 1 By definition, a category 2 permissive lesser included offense is an offense "which [m]ay or [m]ay not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at trial." Brown v. State, 206 So.2d 377, 383 (Fla.1968). Unlike a category 1 necessarily included offense, "such lesser offense is not an essential ingredient of the major offense" charged, in that its statutory elements are not entirely subsumed within the statutory elements of the major [charged] offense. Brown v. State, 206 So.2d at 383. Such an offense is, therefore, "the same as a [category 1] necessarily included offense except that it contains one or more [additional] statutory elements which the charged offense does not contain." Nurse v. State, 658 So.2d 1074, 1077 (Fla. 3d DCA 1995) In order to qualify, however, as a proper category 2 permissive lesser included offense, the indictment or information must allege all the statutory elements of the subject lesser offense, and the evidence at trial must establish each of these elements. Brown; Nurse.
The charged offense in this case is the third-degree felony of grand theft of an automobile proscribed by Section 812.014(1), (2)(c)(4), Florida Statutes (1991), which provides as follows:
"(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit therefrom.
(b) Appropriate the property to his own use or to the use of any person not entitled thereto.
....
(2)(c) It is grand theft of the third degree and a felony of the third degree ... if the property stolen is:
....
4. A motor vehicle."
Section 812.012(2), Florida Statutes (1991), defines the term "obtains or uses," as employed in the above statute, as follows:
"(2) 'Obtains or uses' means any manner of:
(a) Taking or exercising control over property.
(b) Making any unauthorized use, disposition, or transfer of property.
(c) Obtaining property by fraud, willful misrepresentation of a future act, or false promise.
(d) 1. Conduct previously known as stealing; larceny; purloining; abstracting; embezzling; misapplication; misappropriation; conversion; or obtaining money or property by false pretenses, fraud or deception; or
2. Other conduct similar in nature."
Based on the above statutes, it is clear that there are three essential elements to the felony of grand theft of a motor vehicle: (1) the knowing and unlawful obtaining or use, or the knowing and unlawful endeavor to obtain or use, (2) the motor vehicle of another, (3) with intent to either temporarily or permanently (a) deprive the owner or lawful possessor of the motor vehicle of a right to the vehicle or a benefit from it, or (b) appropriate the motor vehicle to the accused's own use or to the use of any person not entitled to it.
The lesser second-degree misdemeanor offense of trespass in a conveyance is proscribed by Section 810.08(1), Florida Statutes (1991), which provides as follows:
"Whoever, without being authorized, licensed, or invited, willfully enters or remains in any ... conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a ... conveyance."
Section 810.011, Florida Statutes (1991), defines the term "conveyance" in the above statute to include "any motor vehicle." Based on the above statutes, it is clear that there are three statutory elements of trespass in a conveyance: (1) the willful entry or remaining, (2) in a conveyance [motor vehicle] of another, (3)(a) without being authorized, licensed or invited to enter or remain in the conveyance by the owner or lessee or a person authorized by the owner or lessee of the conveyance, or (b) after having been so authorized, licensed or invited to enter or remain in the conveyance, refusing to comply with a warning by the owner, lessee or a person authorized by the owner or lessee to depart the conveyance.
It is plain that the second and third elements of trespass in a conveyance, namely, (2) the conveyance [or motor vehicle] of another, and (3) lack of consent, are subsumed in the elements of grand theft of a motor vehicle. Indeed, both offenses expressly contain the element of a conveyance [or motor vehicle] of another, as the protected property; and the offense of grand theft of a motor vehicle implicitly embraces lack of consent by the owner or lawful possessor of the motor vehicle, an express element of trespass in a conveyance, because consent is an affirmative defense to the crime of theft, otherwise lack of consent is presumed. State v. Wynn, 433 So.2d 1341, 1342 (Fla. 2d DCA 1983); see also Quarterman v. State, 401 So.2d 1159 (Fla. 3d DCA 1981).
There is, however, one element which trespass in a conveyance has that grand theft of a...
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