District Court of Appeal of Florida, Second District.
James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
KELLY, Judge.
Anthony Hartley was convicted of: count one, felony battery with great bodily harm and count two, burglary of a conveyance with a battery. He contends that we should reverse his conviction for count two because the trial court denied his request for a jury instruction on burglary, a necessarily lesser-included offense of burglary of a conveyance with a battery. The State concedes the error.
When requested, trial courts are required to instruct juries on necessarily lesser-included offenses of the charged offense. State v. Abreau, 363 So. 2d 1063 (Fla.1978); Miller v. State, 870 So. 2d 15 (Fla. 2d DCA 2003). Simple burglary is a necessarily lesser-included offense of burglary with a battery. Because the jury did not have the opportunity to consider whether Mr. Hartley was guilty of the lesser offense of burglary, we affirm his conviction for count one, but reverse his judgment and sentence for count two and remand for a new trial.
Affirmed in part, reversed in part, and remanded.
CASANUEVA, C.J., and CRENSHAW, J., Concur.
