Opinion
No. 95-2443.
May 1, 1996.
An Appeal from the Circuit Court for Dade County; Leslie B. Rothenberg, Judge.
Bennett H. Brummer, Public Defender and Louis Campbell, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General and Steven Groves, Assistant Attorney General, for appellee.
Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
As the state concedes, we are required to reverse the defendant's conviction of burglary of a structure for a new trial because the trial court erroneously denied an instruction on the lesser included offense of trespass. Jones v. State, 666 So.2d 960 (Fla. 3d DCA 1996); see State v. Abreau, 363 So.2d 1063 (Fla. 1978).
Because the issue will likely not arise at the new trial in the posture presented below, we do not consider the merits of the evidentiary point raised by the appellant.