Harrison v. State, 743 So. 2d 178 (Fla. 3d DCA 1999). · Go Syfert
Search
Harrison v. State, 743 So. 2d 178 (Fla. 3d DCA 1999). Cases Citing This Book View Copy Cite
18 citation events (10 in the last 25 years) across 1 distinct court.
Strongest positive: Lee v. State (fladistctapp, 2007-06-06)
Top citers, strongest first. 5 distinct citers.
cited Cited as authority (rule) Lee v. State
Fla. Dist. Ct. App. · 2007 · confidence medium
Lawrence v. State, 746 So.2d 1252, 1253 (Fla. 5th DCA 1999); Harrison v. State, 743 So.2d 178, 178 (Fla. 3d DCA 1999).
cited Cited as authority (rule) Bell v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
Harrison v. State, 743 So.2d 178, 179 (Fla. 3d DCA 1999).
cited Cited as authority (rule) Leveritt v. State
Fla. Dist. Ct. App. · 2002 · confidence medium
See Sochor, 619 So.2d at 290 ; Steele, 561 So.2d at 644-45 ; and Harrison v. State, 743 So.2d 178, 179 (Fla. 3d DCA 1999).
cited Cited "see" Davis v. State
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Harrison v. State, 743 So.2d 178 (Fla. 3d DCA 1999); Viveros v. State, 699 So.2d 822 (Fla. 4th DCA 1997).
discussed Cited "see, e.g." Jackson v. State
Fla. Dist. Ct. App. · 2000 · signal: see also · confidence low
Any further frivolous filings on the part of the petitioner will result in forfeiture of all or part of his gain time. § 944.28(2)(a), Fla. Stat. (1997); Duncan, 728 So.2d at 1237 (“We caution defendant that ‘a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding or appeal in any court is subject to having his or her gain time forfeited.’ ”); see also Green v. State, 743 So.2d 178 (Fla. 5th DCA 1999).
Alphanso E. HARRISON, Appellant,
v.
The STATE of Florida, Appellee.
99-650.
District Court of Appeal of Florida, Third District.
Nov 3, 1999.
743 So. 2d 178
Schwartz, C.J., and Levy and Fletcher.
Cited by 12 opinions  |  Published

[*179] Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Jill K. Traina, Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.

SCHWARTZ, Chief Judge.

The only disputed issue at the appellant's trial was whether he entered the premises upon which he had admittedly trespassed with the intent to commit the offense of theft, as alleged, and was therefore guilty of burglary as he was charged and convicted. In these circumstances, the trial judge's instruction that he was guilty of burglary if he had a "fully formed conscious intent to commit the offense of burglary in [the] structure" [e.s.], even though unobjected to below, requires a new trial. It is apodictic that the failure to instruct as to any element of an offense which is "pertinent or material to what the jury must consider in order to convict," Stewart v. State, 420 So.2d 862, 863 (Fla. 1982), amounts to fundamental error which need not be preserved below. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Viveros v. State, 699 So.2d 822 (Fla. 4th DCA 1997). That rule is plainly applicable in this case, in which the totally circular instruction which was actually given—that burglary consists of entering premises with the intent to commit a burglary—entirely eliminated the crucial element of the intent to commit another, different offense. § 810.02(1), Fla. Stat. (1999); see Viveros, 699 So.2d at 822. Compare, e.g., Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983) (no fundamental error in failing to instruct on element of a crime conceded to be present).

We note that the trial court also committed clear error by permitting the contents of the defendant's sworn motion to dismiss to be introduced into evidence (as a purported admission) in the state's case in chief.

Reversed.