Lovette v. State, 94-01133

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Lovette v. State, 654 So.2d 604 (Fla. App. 1995)
• Decision Date: 28 April 1995
• Docket Number: No. 94-01133,94-01133
• Parties: 20 Fla. L. Weekly D1053 Charles Earl LOVETTE, Appellant, v. STATE of Florida, Appellee.

Page 604

654 So.2d 604

20 Fla. L. Weekly D1053

Charles Earl LOVETTE, Appellant, v. STATE of Florida, Appellee.

No. 94-01133.

District Court of Appeal of Florida Second District.

April 28, 1995.

Robert E. Jagger, Public Defender, and Kandice L. Friesen, Asst. Public Defender, Clearwater, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Susan D. Dunlevy, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Charles Earl Lovette appeals his convictions for grand theft and burglary. Because we conclude that the trial court erred in giving a jury instruction on principals, over Mr. Lovette's objection, we reverse his convictions and remand for a new trial on both charges.

The state's evidence demonstrated that on the evening of August 24, 1993, two neighbors saw Mr. Lovette coming out of the back door of the victim's apartment carrying two boxes. After Mr. Lovette had left, the neighbors noticed that the victim's window air conditioner was missing. Because they knew the victim was in Lake City visiting a relative, following the death of the victim's boyfriend, the neighbors called her sister to report what they had seen. When the victim's sister arrived at the apartment, she noticed that an air conditioner, two television sets, and two boxes of clothes were missing. She testified the apartment was burglarized soon after she told Mr. Lovette that her sister was out of town. The victim testified that upon returning to her apartment, she noticed the air conditioner, two television sets, and some of her boyfriend's clothes were missing. Although Mr. Lovette had been in her apartment a few times while her boyfriend was alive, he had only been there once since her boyfriend's death. Mr. Lovette did not have a key to, or permission to be in, the victim's apartment.

Mr. Lovette's testimony presents a different view of the night's events. He testified in his own behalf that he did not enter the victim's apartment on the night of August 24. Instead, when the neighbors saw him, he was carrying two boxes to his mother's house after his girlfriend "had put him out." Later, the two neighbors knocked on the door of his mother's house and asked him to come to their apartment. When he arrived, the neighbors showed him two shopping carts filled with, among other things, a television and two boxes. They asked him to trade the items for crack cocaine, which he did. Mr. Lovette had bought cocaine for and smoked cocaine with the two neighbors on prior occasions. Instead of delivering the crack cocaine to the two neighbors that evening, Lovette kept it for himself. He had no idea that the neighbors would call the police and accuse him of burglarizing the victim's apartment to get back at him for keeping their cocaine. On cross-examination, Lovette stated that he had an idea the property was "hot," but he did not know for certain. He did not know the items he sold in exchange for cocaine belonged to the victim. He had never been in the victim's apartment and did not know that she owned an air conditioner and two televisions.

At the jury charge conference, the state requested the trial court to give the principal instruction. The defense objected, contending that there was insufficient evidence to support a principal theory. The trial court indicated that the instruction would be given only in connection with the grand theft charge, not the...