Oliveria v. State

417 So. 2d 1004, 1982 Fla. App. LEXIS 21200

Opinion

PER CURIAM.

Defendant appeals his conviction and sentence on the charge of first degree burglary. The information charged that in the course of the burglary, defendant committed an assault. Prior to trial, defendant moved to dismiss the information because the elements of the assault were not stated. At trial, defendant moved for a directed judgment of acquittal as to the assault asserting there was insufficient proof of this crime which was alleged as an aggravating element.

In accordance with Lindsey v. State, 416 So.2d 471 (Fla. 4th DCA 1982), we conclude that the trial court erred in failing to dismiss the information. The elements of an assault must be stated when this crime is charged as an aggravating element in a burglary information. As held in Lindsey, supra, such an omission is not fundamental error but here the point was raised prior to trial and even on appeal it is not precisely certain what facts were relied on at trial as constituting the alleged but ill-defined assault. The proof does support the lesser crime of second degree burglary and the case is remanded to the trial court with directions to adjudicate defendant guilty of second degree burglary and to resentence him accordingly.

REVERSED AND REMANDED.

BERANEK, J., OWEN, WILLIAM C., Jr., Associate Judge (Retired), and GREEN, OLIVER L., Jr., Associate Judge, concur.