Florida Criminal Law Opinions

EDWARD BERNARD ALLEN, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D07-4744

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

March 28, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Alachua County. Peter K. Sieg, Judge.

COUNSEL:   Edward Bernard Allen, Pro se, Appellant.

Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   BENTON, LEWIS, and ROBERTS, JJ., CONCUR.

OPINION  

PER CURIAM.

The appellant appeals the trial court’s denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The second claim, that he was not properly charged by the state, is conclusively refuted by the record, and we affirm the trial court’s denial of this claim. The appellant also argues that his two five-year sentences imposed for two convictions of battery on a law enforcement officer may not be enhanced by sentencing him as a prison releasee reoffender (”PRR”) because the offenses do not constitute forcible felonies. The appellant’s claim has merit. See State v. Hearns, 961 So. 2d 211 (Fla. 2007); Witt v. State, 387 So. 2d 922 (Fla. 1980) (changes that place beyond the authority of the state the power to impose certain penalties are to apply retroactively); Johns v. State, 971 So. 2d 271, 33 Fla. L. Weekly D181 (Fla. 1st DCA Jan. 18, 2008). We therefore reverse and remand the order for the trial court to  [*2]  strike the PRR designation.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

BENTON, LEWIS, and ROBERTS, JJ., CONCUR.

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DOUGLAS MICHAEL GUETZLOE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-44

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

March 28, 2008, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the County Court for Orange County, C. Jeffrey Arnold, Judge.

COUNSEL:   Frederic B. O’Neal, Windermere, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   COHEN, J. SAWAYA and EVANDER, JJ., concur.

OPINION BY:   COHEN

OPINION  

COHEN, J.

Douglas Guetzloe appeals the denial of two motions to dismiss an amended information charging Guetzloe with 14 counts of violating section 106.1439, Florida Statutes (2004), Florida’s Electioneering Communication Statute. We affirm in part and reverse in part.

The Facts

The charges resulted from the 2006 mayoral election in the City of Winter Park. Just before the election, Mr. Guetzloe prepared and mailed out a four-page packet, which purportedly documented a neighborhood dispute and subsequent prosecution of a candidate running for reelection for the position of Mayor of Winter Park, Florida. The mayor allegedly deposited dog excrement on a neighbor out walking his dogs. The mail-out included a police report, victim’s statement, and pretrial diversion contract. Mr. Guetzloe’s effort at the quintessential smear campaign went to over five thousand households and occurred without the knowledge  [*2]  or consent of the candidates. n1 Following the election, the disclosure form required by section 106.071 was filed identifying Guetzloe as the source of the mail-out.

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The mayor’s opponent filed an affidavit crediting loss in the subsequent election to Mr. Guetzloe’s mail-out, which appears to have been a misguided and unsuccessful effort to defeat the mayor’s reelection.
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Procedural History

The State charged Guetzloe with 14 counts of violation of section 106.1439, each a misdemeanor of the first degree. Guetzloe moved to dismiss the prosecution, claiming that the statute was an overbroad restriction against anonymous political speech. Further, he argued that the statute allowed for only one unit of prosecution. At the hearing on the motion to dismiss, the State stipulated that the prosecution of Guetzloe stemmed from his failure to include the “paid electioneering communication” disclaimer, and was not based upon failure to include his name and address on the electioneering communication. Those motions were denied and Guetzloe entered a no contest plea reserving the right to appeal. Pursuant to Florida Rule of Appellate Procedure 9.160, Guetzloe moved for entry of an order certifying  [*3]  questions of great public importance. The county court, in and for Orange County, granted that motion, certifying two questions of great public importance;

1. Whether Section 106.1439, Florida’s Electioneering Communication Statute, is not [sic] an overbroad restriction against anonymous political speech.

2. Whether Section 106.1439 allows the State to charge separate counts for each person to whom an electioneering communication is addressed, mailed, and received.This court granted certification. On appeal, Guetzloe challenges the constitutionality of the statute, in toto.

Analysis

For the reasons set forth below, we restate the first question presented. Section 106.1439(1) provides:

Any electioneering communication shall prominently state: “Paid electioneering communication paid for by (Name and address of person paying for the communication).”

At issue is whether the “name and address” mandate is severable from the “paid electioneering communication” requirement and if so, whether the statute as redacted constitutes an overbroad restriction of anonymous political speech. Section 106.011(18)(a) defines “electioneering communication” as a paid expression that:

1. Refers to or depicts a clearly  [*4]  identified candidate for office or contains a clear reference indicating that an issue is to be voted on at an election, without expressly advocating the election or defeat of a candidate or the passage or defeat of an issue.

2. For communications referring to or depicting a clearly identified candidate for office, is targeted to the relevant electorate. A communication is considered targeted if 1,000 or more persons in the geographic area the candidate would represent if elected will receive the communication.It is undisputed that Guetzloe’s mail-out met the statutory definition and constituted an electioneering communication.

We find the disclosure requirements of section 106.1439 are severable and Guetzloe can be prosecuted for his failure to include “paid electioneering communication” on the mail-out. In Doe v. Mortham, 708 So. 2d 929 (Fla. 1998), the plaintiffs argued that section 106.071(1), was overbroad and infringed upon their First Amendment right to engage in anonymous political speech. That statute required political advertisements paid for by an independent expenditure prominently state “Paid political advertisement paid for by (Name and address of person paying for advertisement)  [*5]  independently of any (candidate or committee).” The supreme court found that despite the statute’s problematic “name and address” mandate, the generic requirement that all communications be marked with the phrase “Paid political advertisement” in no way violated the right to engage in anonymous political speech.

There is no substantive difference between the phrase “paid political advertisement,” approved in Mortham, and “paid electioneering communication” found in section 106.1439(1). The disclaimer requirement in the instant case does not violate First Amendment principles. Accordingly, Guetzloe was required under section 106.1439 to disclose that the mail-out was a “Paid electioneering communication,” and failure to do so subjected him to prosecution.

The State did not pursue prosecution for Guezloe’s failure to disclose his identity on the mail-out. Having found the statutory provisions severable, we do not need to reach the constitutionality of the “name and address” provision within section 106.1439.

Guetzloe next argues that section 106.1439 allows for only one unit of prosecution and his additional 13 convictions for section 106.1439 violations are barred by double jeopardy, which  [*6]  prohibits multiple punishments for the same offense.

In determining the “allowable units of prosecution,” courts must look to the criminal activity that the legislature intended to punish. McKnight v. State, 906 So. 2d 368, 371 (Fla. 5th DCA 2005). In McKnight, this court discussed the factors to be considered by the court in determining allowable units of prosecution. It is a common sense approach, guided by the statutory language, context, similar enactments, and case law.

Applying this common sense approach to the present case, we find that section 106.1439 allows only one unit of prosecution. Guetzloe’s original electioneering communication consisted of one mailing, sent to over five thousand households. Section 106.011(18)(a), which defines “electioneering communication” and brings Guetzloe’s electioneering communication within the purview of the criminal courts, contemplates that an offender will mail, email, or otherwise distribute substantial numbers of communications. Indeed, the statute uses a figure of 1000 as indicative of targeting. Common sense suggests the legislature did not intend that violation of section 106.1439, which it classified as a misdemeanor, would subject  [*7]  the offender to one year in jail for each of the 1000 communications.

This conclusion is buttressed by the “a/any” test, and the legislature’s use of the word “any” in section 106.1439(2): “Any person who fails to include the disclaimer prescribed in this section in any electioneering communication that is required to contain such disclaimer commits a misdemeanor of the first degree.” (Emphasis supplied.) Under the “a/any” test, use of the word “any” indicates an ambiguity as to the intended units of prosecution, and any doubt as to legislative intent must be resolved by application of the rule of lenity. Id. at 372. Under the rule of lenity, ambiguity in the statute must be interpreted to favor the defendant.

We conclude that double jeopardy bars multiple prosecutions for a single distribution of electioneering communications.

Accordingly, we AFFIRM IN PART, REVERSE and REMAND for resentencing based upon this opinion.

SAWAYA and EVANDER, JJ., concur.

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NICHOLAS S. KITTELSON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-2773

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

March 28, 2008, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   GRIFFIN, J. TORPY and EVANDER, JJ., concur.

OPINION BY:   GRIFFIN

OPINION  

GRIFFIN, J.

Nicholas S. Kittelson [”Defendant”] appeals the trial court’s order requiring him to pay restitution in the amount of $ 3,326.95. We affirm.

On about March 30, 2007, Defendant punched and injured John Hermann [”Victim”]. Defendant was subsequently charged with one count of felony battery. Defendant reached a plea agreement with the State. Pursuant to the agreement, Defendant plead no contest to the charged offense in exchange for an adjudication of guilt and a six month jail sentence, with the six month jail sentence to be suspended upon the payment of $ 1,866 in fees, fines and costs. The plea agreement does not mention the issue of restitution.

On June 25, 2007, the trial court accepted Defendant’s plea and adjudicated him guilty. That same day, it entered a judgment sentencing him to six months in the county jail, with the  [*2]  jail sentence suspended upon Defendant’s payment of $ 1,866 in “fines, fees, and costs.” The court also entered a “Final Judgment Assessing Charges, Costs and Fines,” reflecting the $ 1,866 amount. The issue of restitution was not discussed at the sentencing hearing. Nonetheless, the trial court also executed an order entitled “Restitution Order,” checking the box indicating that “restitution was not ordered due to    .” The blank was not filled in, and there is no other indication why restitution was not ordered.

On July 18, 2007, the State filed a motion to correct sentence. In the motion, the State argued that the trial court’s sentence was illegal because it failed to include an award of restitution. On August 7, 2007, the trial court held a short hearing on the State’s motion.

At the hearing, the State asked the trial court to order $ 3,326.95 in restitution to compensate the worker’s compensation insurance company for the amount it paid out to Victim. n1 Defense counsel objected to the imposition of restitution, arguing that Defendant had “already been sentenced” and that the issue of restitution had been adjudicated by being “ordered in the amount of none.” The trial court decided  [*3]  that it had jurisdiction to award restitution because they were “within the 60 day time period . . . .” The court ordered Defendant to pay $ 3,326.95 in restitution. The trial court also ruled that if Defendant felt aggrieved by this decision, he would be allowed to withdraw his plea.

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At the hearing on the motion to correct Defendant’s sentence, the State suggested that it had evidence to support a restitution award in the amount of $ 1,765.68 at the time of the sentencing hearing. There is no explanation why the State did not seek restitution at the hearing, however.
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There is no doubt that unless it finds clear and compelling reasons not to do so, the trial court must order the defendant to make restitution to the victim for damage or loss caused by the defendant’s offense or related to the defendant’s criminal episode. § 775.089(1)(a), Fla. Stat. (2007). If the court does not order restitution, or orders restitution of only a portion of the damages, the court is required to state detailed reasons on the record. § 775.089(1)(b)(1), Fla. Stat. (2007). Restitution is a mandated part of sentencing, and the failure to impose restitution as part of a sentence results in an incomplete sentence  [*4]  that is subject to timely modification.

Restitution may be imposed at the time of sentencing or within sixty days thereafter. Ridley v. State, 890 So. 2d 1261, 1262 (Fla. 5th DCA 2005); see also State v. Sanderson, 625 So. 2d 471, 473 (Fla. 1993); L’Heureux v. State, 968 So. 2d 628, 629-30 (Fla. 2d DCA 2007) (”[A] trial court may properly order restitution within sixty days after failing to order restitution at sentencing and failing to reserve jurisdiction to do so.”) However, “[o]nce the court has entered an order setting the amount of restitution, jeopardy attaches . . . thereby precluding the court from modifying the amount.” See V.B. v. State, 944 So. 2d 1185, 1186 (Fla. 1st DCA 2006); see also Strickland v. State, 681 So. 2d 929, 930 (Fla. 3d DCA 1996) (”It is well established that where a lawful sentence has been imposed and the sentencing hearing concluded, it is a violation of the defendant’s constitutional protection against double jeopardy to increase the sentence at a later time.”); V.B., 944 So. 2d at 1186.

In Strickland for example, the Third District held that the trial court reversibly erred when, an hour after the sentencing hearing was concluded, the court increased  [*5]  the amount of restitution initially ordered. Similarly, in Ely v. State, 855 So. 2d 90, 91 (Fla. 2d DCA 2003), the trial court entered a final order “reflecting that no restitution would be paid.” Later, within the sixty-day modification period, the trial court modified the defendant’s probation “to include an amount of restitution.” Id. The appellate court held that the trial court’s modification violated the defendant’s double jeopardy rights, because it increased the defendant’s sentence after the entry of the final order requiring no restitution. Id.

Contrast these cases with Bunch v. State, 745 So. 2d 400 (Fla. 5th DCA 1999), where the defendant entered a plea of no contest and was sentenced to lengthy terms of imprisonment. Restitution was never discussed nor made a part of the written plea agreement or sentence. Id. Then, three days after sentencing, the state sought to amend the judgment to include a provision for restitution on behalf of one of the victims. The trial court awarded restitution. Id. at 400-401. On appeal, the defendant in Bunch argued that the restitution order violated his due process rights because he did not agree to restitution in his plea agreement and the  [*6]  addition of restitution constituted an increase in his sentence. In rejecting the defendant’s argument and affirming the trial court, this Court said that the failure to impose restitution as part of a sentence results in an incomplete sentence that is subject to timely modification. Id. at 402.

The issue in this appeal is whether, at the sentencing hearing, the trial court failed to order restitution or ordered that Defendant owed no restitution. If the trial court simply failed to order restitution, then Defendant’s original sentence was incomplete and the trial court properly modified the sentence to include restitution. See Bunch, 745 So. 2d at 402. If, however, the trial court ordered that Defendant owed no restitution, then principles of double jeopardy precluded the trial court from increasing the amount of restitution owed. See Ely, 855 So. 2d at 91. In essence, we are called upon to interpret the restitution order.

It is important that the issue of restitution was not discussed in Defendant’s plea agreement or at the sentencing hearing. Also, even though the trial court executed a written form order indicating that “restitution is not ordered,” it did not fill in the line on  [*7]  the order form requiring it to explain why restitution was not ordered. Nothing in the subsequent hearing suggested that the trial court had intended to order zero in restitution. When viewed as a whole, the record supports the conclusion that the trial court did not order restitution, not that it ordered that Defendant owed no restitution. Accordingly, the trial court acted properly in modifying Defendant’s sentence to include a restitution amount.

AFFIRMED.

TORPY and EVANDER, JJ., concur.

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KATHLEEN GARRETT, Appellant/Cross-Appellee, v. STATE OF FLORIDA, Appellee/Cross-Appellant.

Case No. 5D07-1301

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

March 28, 2008, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Seminole County, Clayton D. Simmons, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Michael Olshefski, Assistant Public Defender, Daytona Beach, for Appellant/Cross-Appellee.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant.

JUDGES:   COHEN, J. GRIFFIN and SAWAYA, JJ., concur.

OPINION BY:   COHEN

OPINION  

COHEN, J.

Kathleen Garrett appeals her conviction and sentence following a jury trial for the charge of child abuse. She challenges the sufficiency of the evidence and the accuracy of a jury instruction. We affirm.

The standard of review of a motion for judgment of acquittal is de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the offense beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. Id.

Section 827.03(1), Florida Statutes (2004), provides in pertinent part:

“Child abuse” means:

(a) Intentional infliction of physical or mental injury upon a child;

(b) An intentional act that could reasonably be expected to result in physical  [*2]  or mental injury to a child; . . . .

A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, . . . .

We conclude that sufficient evidence supported the jury’s guilty verdict. Ms. Garrett was employed by the Seminole County School Board as a special education teacher assigned to provide vocational instruction to autistic children. The trial testimony reflected that Ms. Garrett placed her body weight upon a child with enough force and for a long enough period of time until he turned blue from a lack of oxygen. The jury was entitled to find that her conduct exceeded the scope of appropriate discipline and constituted child abuse.

We also determine that the jury was properly instructed on the statutory elements of the offense. The trial judge supplemented the standard jury instruction, which does not provide a definition of physical injury, with an instruction that “[p]hysical injury means asphyxiation, suffocation, or drowning.” Ms. Garrett argues that it was fundamental error for the court to use that definition borrowed from section 39.01(30)(a)(4)e., Florida  [*3]  Statutes (2004). n1 We reject this contention. Section 39.01(30)(a)(4) should be read in pari materia with section 827.03(1) and is appropriately used by the courts to define excessive or abusive corporal discipline. Czapla v. State, 957 So. 2d 676, 679 (Fla. 1st DCA 2007), review denied, 969 So. 2d 1012 (Fla. 2007); State v. McDonald, 785 So. 2d 640, 645-46 (Fla. 2d DCA 2001).

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Section 39.01(30)(a)(4)e., Florida Statutes (2004), defines “harm” and specifies that “corporal discipline may be considered excessive or abusive when it results in any of the following or other similar injuries: . . . e. Asphyxiation, suffocation, or drowning.” This section was renumbered effective July 1, 2006, to section 39.01(31)(a)(4)e. Ch. 06-86, § 1, at 1283, Laws of Fla.
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It is the responsibility of the court to correctly and intelligently instruct the jury on the essential and material elements of the crime. Battle v. State, 911 So. 2d 85, 88 (Fla. 2005). The use of an inaccurate and less stringent definition of a material disputed element of the crime may constitute fundamental error when it reduces the State’s burden of proof. Gryphon v. State, 847 So. 2d 589, 593 (Fla. 5th DCA 2003) (holding fundamental error  [*4]  occurred in prosecution for aggravated child abuse when instructions recited the unamended standard jury instruction on malice, instead of the more stringent standard adopted in State v. Gaylord, 356 So. 2d 313 (Fla. 1978)).

The abbreviated instruction may have simplified the jury’s duty to apply the facts to the law, but that does not necessarily equate with an inaccuracy that rises to the level of fundamental error as seen in Gryphon, 847 So. 2d 589, n2 and similar cases. n3 The jury was also instructed that corporal discipline that does not result in harm to the child did not constitute criminal child abuse. n4 Therefore, they had to conclude that the child suffered asphyxiation and physical injury as a result of Ms. Garrett’s actions to reach their verdict. If anything, this definition inured to her benefit by narrowing the conduct that potentially subjected her to prosecution. We find no error.

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Accord Young v. State, 753 So. 2d 725 (Fla. 1st DCA 2000).3

See Caldwell v. State, 920 So. 2d 727 (Fla. 5th DCA 2006) (concluding fundamental error occurred when wholly inaccurate instruction on carrying a concealed weapon by a convicted felon allowed jury to find defendant guilty without deciding  [*5]  whether a paring knife was a “concealed weapon”).4

Whether this instruction, which effectively precluded a finding of guilt under section 827.03(1)(b), was appropriate is not before us for determination. See Czapla, 957 So. 2d at 679.
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AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

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ALVIN DANIEL CONRAD, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-1420

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

March 28, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Lake County, T. Michael Johnson, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   EVANDER, J. PALMER, C.J. and PLEUS, J., concur.

OPINION BY:   EVANDER

OPINION  

EVANDER, J.

Alvin Conrad timely appeals from his judgment and sentence for burglary of a structure with a battery therein while armed. We find that Conrad could only be properly convicted of burglary of a structure while armed, but otherwise affirm.

Conrad was charged by amended information with burglary of a structure with a battery therein while armed and three counts of misdemeanor battery. He was tried jointly with co-defendant Mark Fields. Numerous witnesses were called by the State. Taken in the light most favorable to the State, the evidence established that on the evening in question, Conrad and Fields were patrons in Jesse Black’s Saloon. Fields insulted a female patron and was told by a bouncer, Ben Desormo, to apologize. At this time, Conrad took an ill-advised swing at Desormo. Desormo is approximately six foot six  [*2]  inches tall and weighs close to 300 pounds. Desormo knocked Conrad to the floor with one or two punches. Fields and Conrad were then escorted to the door and told to leave. They left the bar but Fields went to his truck and retrieved a shotgun. Fields and Conrad re-entered the bar with Fields yelling “where’s the big guy?” Conrad was alleged to have struck three individuals while Fields was holding the shotgun. Fields then used the shotgun to smash the cash register — causing the shotgun to break. Several individuals then attacked and beat Fields and Conrad.

Conrad did not testify and presented no witnesses. Fields testified that the incident started when Desormo knocked Conrad off his stool. Desormo then struck Fields, knocking him unconscious. When Fields regained consciousness, he saw Conrad on the floor being punched by four or five people. According to Fields, he then ran to his truck, retrieved his shotgun, and returned to the bar to save Conrad’s life. Fields claims he was then knocked unconscious again when someone hit him in the back of the head. The next thing Fields remembered was being told by a police officer that he was under arrest. Another witness gave testimony that  [*3]  was supportive of Fields’ version of the events.

The jury found Conrad guilty as charged of burglary with a battery therein while armed. Conrad was found not guilty of the three separate battery charges. Conrad subsequently filed a motion for arrest of judgment on the burglary count, contending that the jury’s verdicts were inconsistent.

An inconsistent verdict claim presents a pure question of law and is reviewed de novo. Brown v. State, 959 So. 2d 218, 220 (Fla. 2007). As a general rule, inconsistent verdicts are permitted in Florida because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant. Id. Inconsistent verdicts may arise from a jury’s exercise of its “inherent authority to acquit” even if the facts support a conviction. State v. Connelly, 748 So. 2d 248, 252 (Fla. 1999).

The Florida Supreme Court has recognized only one exception to the general rule allowing inconsistent verdicts. This exception is referred to as a “true” inconsistent verdict. A true inconsistent verdict occurs when an acquittal on one count negates the necessary element for conviction on another count. Brown, 959 So. 2d at 220; see also State v. Powell, 674 So. 2d 731, 732-33 (Fla. 1996).

To  [*4]  prove a burglary, the State needs to prove that a defendant entered a dwelling, structure, or conveyance with the intent to commit an offense therein. § 810.02, Fla. Stat. (2006). The State is not required to prove that a defendant actually committed a separate crime. See, e.g., Hill v. State, 839 So. 2d 865 (Fla. 4th DCA 2003) (conviction for burglary with intent to commit theft is not legally inconsistent with acquittal on petit theft charge); Miranda v. State, 648 So. 2d 174 (Fla. 3d DCA 1994) (to prove offense of burglary, it was necessary only to show that at time of entry into building, defendant had fully informed intent to commit offense of criminal mischief, and not that defendant had committed offense of criminal mischief). Thus, the jury could properly find that Conrad committed a burglary because he re-entered Jesse Black’s Saloon with the intent to commit a battery even though he did not subsequently commit a battery.

The jury’s finding that Conrad committed a burglary with a battery therein while armed raises a separate issue. Section 810.02(2) provides for enhanced penalties where, in the course of the commission of a burglary, the offender:

a. makes an assault or battery  [*5]  upon any person; or

b. is or becomes armed within the dwelling, structure or conveyance, with . . . a dangerous weapon, . . . .Here, the jury was properly instructed on these enhancements:

The punishment provided by law for the crime of burglary is greater if the burglary was committed under certain aggravating circumstances. Therefore, if you find the defendant guilty of burglary, you must then consider whether the State has fully proved those circumstances.

If you find that in the course of committing the burglary the defendant committed a battery upon any person, you should find him guilty of burglary during which a battery has been committed. . . .

If you find that in the course of the burglary that Alvin Daniel Conrad or Mark Anthony Fields was armed with a firearm, you should find him guilty of burglary while armed with a firearm. . . .

If you find the defendant committed the burglary without any aggravating circumstances, you should find him guilty only of burglary. . . .

Unfortunately, the verdict form did not give the jury the opportunity to consider the two aggravating circumstances separately. n1 As to the burglary count, the jury’s verdict read:

We the jury, find as follows as  [*6]  to the defendant in this case: (check only one)

x A. The defendant is guilty of burglary of a structure while armed with battery as charged in Count One of the Information.

B. The defendant is guilty of burglary, a lesser included offense.

C. The defendant is guilty of battery, a lesser included offense.

D. The defendant is guilty of trespass, a lesser included offense.

E. The defendant is not guilty.

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Conrad did not object to the use of this verdict form.
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To the extent that the jury acquitted Conrad of the three battery counts but found him guilty of committing a battery during the commission of a burglary, there was a true inconsistent verdict. However, the jury’s finding that Conrad was guilty of burglary of a structure while armed was not inconsistent with an acquittal on the battery counts. Accordingly, on remand, the judgment is to be corrected to reflect that Conrad was convicted of burglary of a structure while armed, not burglary of a structure with a battery therein while armed. Resentencing is not required because prior to the sentencing hearing, the trial judge indicated that he considered the jury’s finding that a battery was committed during the burglary to be  [*7]  “surplusage.”

Conrad next contends that the trial court committed fundamental error when it gave the jurors two contradictory instructions regarding self-defense. Specifically, the jurors were first told that Conrad had to prove self-defense beyond a reasonable doubt, but were then told that if there was a reasonable doubt about Conrad’s self-defense claim, he should be found not guilty.

We agree that the jury instructions were erroneous. See Murray v. State, 937 So. 2d 277 (Fla. 4th DCA 2006). However, the error was harmless. Conrad’s self-defense claim was applicable only as to the battery counts — of which he was acquitted. There was no evidence (or contention) that Conrad re-entered Jesse Black’s Saloon to defend himself or another.

Finally, Conrad contends that the trial court erred in denying his motion for new trial based on newly discovered evidence. To obtain relief based on newly discovered evidence, the asserted facts must have been: 1) unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known them by the use of diligence; and 2) the newly-discovered evidence must be of such a  [*8]  nature that it would probably produce an acquittal on retrial. Melendez v. State, 718 So. 2d 746, 747 (Fla. 1998). We agree with the trial court that the alleged newly discovered evidence in this case was not “of a nature that would probably produce an acquittal on retrial.”

The trial court is directed to correct the judgment to reflect that Conrad was convicted of burglary of a structure while armed. Conrad’s judgment and sentence are otherwise affirmed.

AFFIRMED in part; REVERSED in part.

PALMER, C.J. and PLEUS, J., concur.

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