Butler v. State , 379 So. 2d 715 ( 1980 )

379 So. 2d 715 (1980)

Flozell BUTLER, Appellant,
v.
STATE of Florida, Appellee.

No. 78-1610/T4-162.

District Court of Appeal of Florida, Fifth District.

February 13, 1980.

Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Chief, Appellate Division, Asst. Public Defender and Jon May, Legal Intern, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.

COBB, Judge.

Appellant was charged with burglary of a dwelling in violation of Section 810.02(3), Florida Statutes (1977). At the jury instruction conference, appellant's attorney requested an instruction on both first degree misdemeanor trespass and second degree misdemeanor trespass. The trial court refused to instruct on second degree misdemeanor trespass. The jury found appellant guilty of first degree misdemeanor trespass. Appellant contends that the trial court erred in refusing to instruct the jury on second degree misdemeanor trespass. We agree. Second degree misdemeanor trespass is a lesser included offense; therefore, the trial court should have given the requested instruction. Brown v. State, 206 So. 2d 377 (Fla. 1968).

Since the offense that the judge did not instruct on was not two or more steps from the offense that appellant was convicted of, the failure to give the requested instruction was not harmless error. Delaine v. State, 262 So. 2d 655 (Fla. 1972); State v. Abreau, 363 So. 2d 1063 (Fla. 1978).

REVERSED and REMANDED for new trial.

ORFINGER and SHARP, JJ., concur.