MacEk v. State

409 So.2d 107 (1982) Charles T. MACEK, Jr., Appellant, v. STATE of Florida, Appellee. No. 81-844. District Court of Appeal of Florida, Fourth District. January 20, 1982. Rehearing Denied February 24, 1982. Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant. Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. Appellant was charged and convicted of attempted burglary. He raises three points on appeal, one of which is dispositive. At trial, appellant requested a jury instruction on the lesser included offense of trespass. The trial court denied this request and instructed the jury on attempted burglary only. We reverse. The information charged the appellant with the attempted burglary of a private residence. We believe the offense of trespass was comprehended by the allegations of the information and supported by the evidence adduced at trial. Thus, we hold that trespass was a Category Four lesser included offense under Brown v. State, 206 So.2d 377 (Fla. 1968), and the trial court erred in denying appellant's requested jury instruction. REVERSED AND REMANDED FOR A NEW TRIAL. BERANEK, HERSEY and DELL, JJ., concur.