Nurse v. State
| Decision Date | 05 July 1995 |
| Docket Number | No. 93-2027,93-2027 |
| Parties | 20 Fla. L. Weekly D1555 Henderson NURSE, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Marti Rothenberg, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Michele A. Smith, Asst. Atty. Gen., for appellee.
Before BARKDULL and HUBBART and COPE, JJ.
This is an appeal by the defendant Henderson Nurse from judgments of conviction and sentences for (1) attempted burglary of an unoccupied structure, a third degree felony [Secs. 777.04(4)(c), 810.02(3), Fla.Stat. (1991) ], as a "lesser included offense" of the charged offense of burglary of an unoccupied structure, also a third degree felony [Sec. 810.02(3), Fla.Stat. (1991) ], (2) petit theft [Sec. 812.014(1), (2)(d), Fla.Stat. (1991) ], and (3) resisting an officer without violence [Sec. 843.02, Fla.Stat. (1991) ], which were entered below based on an adverse jury verdict. The central issue presented by this appeal is whether it constitutes reversible error for a trial court, as here, to instruct the jury, over proper objection, on a "lesser included offense" when, as here, (a) the lesser offense carries the same penalty as the charged offense, and (b) the jury convicts the defendant on the lesser offense. We conclude that reversible error is presented under these circumstances based on a holding that (1) all lesser included offenses--i.e. both category 1 and category 2 lesser included offenses--must carry a lesser penalty than the charged offense, else they are not proper lesser included offenses, and (2) attempted burglary of an unoccupied structure cannot be a proper lesser included offense of the charged offense of burglary of an unoccupied structure because both offenses are third-degree felonies and carry the same penalty. We accordingly reverse the attempted burglary conviction and remand for a new trial on the necessarily included offense of simple trespass [Sec. 810.08(1), Fla.Stat. (1991) ], but affirm the petit theft and resisting arrest convictions.
The facts of this case are as follows. The defendant Henderson Nurse was charged in a three-count information with: (1) burglary of an unoccupied structure, (2) petit theft, and (3) resisting arrest without violence. He entered a plea of not guilty and was tried by a jury.
The evidence adduced at trial established that on March 13, 1993, the complainant's neighbor observed the defendant wandering around in the neighbor's yard without permission and placing his hands on various items in the yard. The neighbor came outside and confronted the defendant who was standing near a wood pile with some plywood in his hands; the neighbor asked the defendant what he was doing, and the defendant replied that he was "covering up" the wood. The defendant then walked into the complainant's adjoining yard, reached into the complainant's tool shed and brought out a pair of hedge clippers; then, when he noticed that the neighbor was watching, the defendant placed the clippers back in the shed and walked away. The structure from which the defendant took the hedge clippers was described as a "shed ... a little storage shed no wider than about three feet ...," not big enough to step into, only large enough to reach into; the shed had been damaged by Hurricane Andrew, had only three walls, and contained gardening equipment and tools.
After leaving the complainant's yard, the defendant went into a nearby hurricane-damaged garage, came out with a bicycle and rode off down the street. The police were summoned and later intercepted the defendant riding the bicycle in the area; when the police officers asked the defendant to come over to speak to them, the defendant rode off, tried to hide in a hedge, and then ran away until the police caught and arrested him.
At a charge conference, the state requested a jury instruction on attempted burglary of a structure as a lesser included offense of burglary of an unoccupied structure. The defendant objected to this charge solely on the ground that attempted burglary was not a lesser included offense of the burglary because both offenses were third-degree felonies and carried the same penalty. The trial court overruled the defendant's objection and gave the requested attempted burglary instruction. The jury convicted the defendant of attempted burglary, petit theft and resisting arrest without violence. The defendant appeals, claiming as error the giving of the attempted burglary instruction.
The law in Florida is well settled that in a criminal case there are two categories of lesser included offenses upon which a trial court is authorized to instruct the jury under the charged offense in an indictment or information: (1) a necessarily included offense, Fla.R.Crim.P. 3.510(b), and (2) a permissive included offense [including any attempt to commit the charged offense and some lesser degree offenses], Fla.R.Crim.P. 3.510, 3.490. The Florida Supreme Court has expressly so held:
"There has been some confusion in Florida law on how to define lesser included offenses. At one time, the state recognized four separate categories of lesser included offenses, each of which required a separate analysis. Brown v. State, 206 So.2d 377 (Fla.1968) ("Brown II"). Later, partly because of the confusion this earlier categorization had caused, the Court reduced the number of categories to two:
1. Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses.
2. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offense.
In re the Use by the Trial Courts of the Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 596 (Fla.1981), modified, 431 So.2d 599 (Fla.1981)."
State v. Weller, 590 So.2d 923, 925 (Fla.1991) (emphasis added).
In turn, each of these two categories of lesser included offenses have certain requirements which, under existing case law, must be met before being considered proper lesser offenses. As to the first category, a necessarily included offense, Fla.R.Crim.P. 3.510(b), is by definition "an essential aspect of the major offense," one in which "the burden of proof of the major crime cannot be discharged, without proving the lesser crime as an essential link in the chain of evidence," Brown v. State, 206 So.2d 377, 382 (Fla.1968); this means that the statutory elements of a necessarily included offense must be subsumed within the statutory elements of the charged offense. A trial judge has no discretion on whether to instruct the jury on a necessarily included offense; upon request of either party, the judge must so charge the jury once it is determined that the offense is a necessarily included offense, even if the evidence shows that this lesser offense could not have been committed without also committing the charged offense. State v. Wimberly, 498 So.2d 929 (Fla.1986).
As to the second category, a permissive lesser included offense is, in its purest form, the same as a necessarily included offense except that it contains one or more statutory elements which the charged offense does not contain. Consequently, such an offense "may or may not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at the trial." Brown v. State, 206 So.2d at 377, 383 (emphasis in original). If (a) the accusatory pleading alleges all the statutory elements of the lesser offense, Brown, and (b) the subject offense "is supported by the evidence," Fla.R.Crim.P. 3.510(a), aside from proof of the charged offense, so that there is, in effect, a rational basis in the evidence upon which the jury could conclude that the lesser offense, rather than the charged offense, was committed--the trial court must charge the jury on the lesser offense. Wimberly. Moreover, the trial court is expressly precluded from instructing the jury on such an offense "as to which there is no evidence," Fla.R.Crim.P. 3.510(b), aside from proof of the charged offense.
Attempts to commit the charged offense and some lesser degree crimes, as covered by Fla.R.Crim.P. 3.510(a), 3.490, are also now considered permissive lesser included offenses--although they were originally treated as two additional categories in the pathbreaking Brown decision. Weller. Subsequent to Brown, the relevant rules were changed so that now there must, in effect, be a rational basis in the evidence upon which the jury could conclude that the attempt or lesser degree offense, rather than the charged offense, was committed before the trial court can instruct the jury on such offenses. The jury may only be instructed on an attempt or lesser degree offense if such offense is "supported by the evidence," Fla.R.Crim.P. 3.510(a), 3.490, aside from proof of the charged offense; moreover, the trial court is now expressly precluded from instructing the jury (a) on an attempt "if there is no evidence to support the attempt," Fla.R.Crim.P. 3.510(a), and (b) on a lesser degree offense "as to which there is no evidence," Fla.R.Crim.P. 3.490--aside from proof of the charged offense. See generally Jones v. State, 492 So.2d 1124, 1126-29 (Fla. 3d DCA) (Hubbart, J., concurring in part, dissenting in part), rev. denied, 501 So.2d 1282 (Fla.1986). Thus, these two types of offenses are now denominated category 2 permissive lesser included offenses because (a) the accusatory pleading charging the main offense is considered to automatically include an attempt to commit the charged offense (if such an attempt is an offense), as well as a lesser degree offense (if the main offense is divisible into degrees), and (b) the subject offenses must be charged on only when there is, in effect, a rational basis in the evidence to support a conviction for such offense to...
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