Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3958 _____________________________ WISLER LOUIS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Francis Allman, Judge. April 30, 2021 WINOKUR, J. Wisler Louis appeals his judgment and sentences and raises four grounds for reversal. We affirm and write only to address his claim that jury instructions on lesser-included offenses were improperly given. I. On July 11, 2017, the victim returned from walking his dog around 10:15 p.m. to find a man, later identified as Louis, inside his apartment wearing a ski mask, armed with a handgun. The victim tried to knock the gun out of Louis’ hand and a struggle ensued. Louis overcame the victim and tied him up. Louis took the victim’s car keys, cell phone, and wallet, which included his driver license, social security card, a check, his debit cards and a credit card. Louis forced the victim to provide him with his PIN for the cards. It was light out the following day when the victim woke up. Louis told the victim he was going to do some business and was gone for an hour or two. When Louis returned he set the timer on the victim’s oven for 20 minutes at about 1:00 p.m. and told the victim not to leave until it went off. A masked man was photographed in the victim’s car around 10:45 a.m. on July 12, 2017, using the victim’s debit cards at an ATM. A woman was recorded around noon on July 12, 2017, using the victim’s card to purchase three money orders at Publix for a total of $1,502.67. The money orders were used to pay Louis’ rent and contained Louis’ apartment number and “W Louis” on them. Louis was the only person on the lease and utilities. The victim’s belongings were found inside Louis’ apartment along with multiple masks and the Western Union receipts from Publix. II. Among other counts, Louis was charged with burglary of a dwelling with a firearm, kidnapping to facilitate felony with a firearm, and armed robbery with a firearm. Louis represented himself at trial. During the charge conference, Louis repeatedly reiterated his desire to go “all or nothing on all counts” and to waive “all lesser includeds.” The prosecutor appeared to take no issue with this position. However, once the discussion moved on to the jury instructions regarding the use of a firearm a dispute became apparent. The instructions and verdict forms required the jury to determine whether Louis “carried, displayed, used, threatened to use, or attempted to use” a firearm during the commission of each of the three offenses mentioned above: burglary, kidnapping, and robbery. The instructions and verdict forms also required the jury to determine whether Louis “actually possessed” a firearm during the commission of the offenses. Regarding burglary, Louis noted that the instructions permitted the jury to find him guilty of burglary of a dwelling if he did not possess a firearm, a lesser included offense of burglary of a dwelling with a firearm, and were 2 therefore inconsistent with his waiver of lesser included offenses. The prosecutor responded that the use of a firearm was an enhancement and as such, the crimes without use of a firearm were not lesser included offenses. The court agreed with the State. Consequently, the verdict forms for the burglary, kidnapping, and robbery counts each included an interrogatory on the use of a firearm. The jury found Louis guilty of burglary of a dwelling, kidnapping, and robbery but did not find that Louis used a firearm in any of them. On appeal, Louis argues the trial court erred in instructing the jury on the lesser included offenses, which he waived and the State agreed to waive. III. “[A] defendant is entitled to have the jury instructed on all necessarily included lesser offenses.” Harris v. State, 438 So. 2d 787, 796 (Fla. 1983). “This procedural right . . . does not mean, however, that a defendant may not waive his right . . . .” Id. at 797. But even though the defendant may waive instruction on lesser included offenses, “for the waiver of lesser included offense instructions to be effective, the state [has] to consent to the waiver . . . .” Gallo v. State, 491 So. 2d 541, 543 (Fla. 1986), receded from on other grounds by Gould v. State, 577 So. 2d 1302, 1305 (Fla. 1991). In other words, if the State declines to consent to a defense waiver of instruction on necessarily lesser included offenses, the instruction must be given. See Williams v. State, 957 So. 2d 595, 599 (Fla. 2007). See also Fla. R. Crim. P. 3.510(b) (providing that a jury may convict the defendant of any necessarily lesser included offense of the crime charged that is supported by the evidence). Louis notes that he invoked his right to waive lesser included offenses, to which the State agreed. Louis claims that the crimes of which he was convicted (burglary of a dwelling, kidnapping, and robbery) were all lesser included offenses, which were improper in light of his waiver. We consider each offense in turn. A. Burglary of a dwelling The State charged Louis with burglary in accordance with section 810.02(2)(b), Florida Statutes. Under this paragraph, burglary “is a felony of the first degree, punishable by 3 imprisonment for a term of years not exceeding life imprisonment . . . if, in the course of committing the offense, the offender . . . [i]s or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon.” § 810.02(2), (2)(b), Fla. Stat. Indeed, the information alleged that “in the course of committing the offense, [Louis] was armed or became armed within the structure with a firearm, a dangerous weapon.” The jury instructions directed the jury to determine if the State has proved beyond a reasonable doubt “whether, in the course of committing the burglary, Wisler Louis was armed or armed himself within the structure with a dangerous weapon.” “Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense.” Sanders v. State, 944 So. 2d 203, 206 (Fla. 2006) (emphasis supplied). Thus, an offense without an element of a greater offense, but containing elements that are all subsumed by the greater offense, is a necessarily lesser included offense. Under this definition, “armed with a dangerous weapon” is an element of burglary of a dwelling armed with a dangerous weapon, and burglary of a dwelling is a lesser included offense. It is understandable that the State considered the use of a firearm an “enhancement” rather than an element. After all, in the burglary count the State alleged that Louis was subject to enhanced sentencing under section 775.087, Florida Statutes. Under section 775.087(1), a first-degree felony may be reclassified to a life felony if the offender “carries, displays, uses, threatens to use, or attempts to use any weapon or firearm.” Under section 775.087(2)(a)1., a person convicted of burglary must receive a ten- year minimum mandatory sentence if “during the commission of the offense, such person actually possessed a ‘firearm.’” These phrases were used in the verdict form, so the State may have viewed reclassification or the mandatory minimum sentence as penalty enhancements. It is not clear that reclassification under section 775.087(1) would have been permitted even if Louis had been found guilty as charged of burglary of a dwelling armed with a dangerous weapon. The reclassification statute may not be applied to an offense “in 4 which the use of a weapon or firearm is an essential element.” § 775.087(1), Fla. Stat. Section 775.087(1) “does not apply when the defendant is convicted of armed burglary pursuant to section 810.02(2)(b) because use of a firearm is an essential element of that crime . . . .” Wright v. State, 617 So. 2d 837, 841 (Fla. 4th DCA 1993). As such, use of firearm did not “enhance” the offense under section 775.087(1) Unlike reclassification under section 775.087(1), the minimum sentence set forth in section 775.087(2) may be imposed even if the use of a weapon is an element of the felony. While this enhancement would have been available if Louis had been convicted as charged, it does not alter our conclusion that the use of a firearm is an element of burglary of a dwelling armed with a dangerous weapon, and was not simply added to “enhance” the available sentence. B. Kidnapping The State charged Louis with kidnapping to facilitate commission of a felony, pursuant to sections 787.01(1)(a)2., Florida Statutes. Unlike burglary of a dwelling armed with a dangerous weapon, kidnapping to facilitate commission of a felony does not contain an element regarding the use of a firearm or other weapon. Accordingly, the only reason the jury was instructed to find whether Louis “actually possessed” a firearm during the kidnapping, or whether he “carried, displayed, used, threatened to use, or attempted to use” a firearm during the kidnapping, was to permit enhanced sentencing under sections 775.087(1) and (2)(a)1. Because firearm use was only a sentence enhancement of kidnapping, the trial court correctly found that the firearm interrogatories were appropriate on the kidnapping count in spite of Louis’ waiver of lesser included offenses. C. Robbery The State also charged Louis with armed robbery with a firearm in accordance with section 812.13(2)(a), Florida Statutes. Under this paragraph, robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment “[i]f in the course of committing the robbery the 5 offender carried a firearm or other deadly weapon.” Similar to the burglary count, the information alleged that “in the course of committing the robbery [Louis] carried and actually possessed a firearm.” The jury instructions directed the jury that, if it found that Louis “carried a firearm in the course of committing the Robbery, [it] should find him guilty of Robbery with a Firearm.” It is unclear whether Louis properly preserved this claim. While Louis specifically objected that the jury was permitted to find him guilty of unarmed burglary, he made no similar argument with regard to robbery. However, even if Louis had preserved this claim, he is not entitled to relief, as set forth below. Presuming that Louis did preserve this claim, the analysis regarding burglary applies to robbery. Carrying a firearm is an element of robbery with a firearm, so unarmed robbery is a lesser included offense, irrespective of the alleged penalty enhancements. See, e.g., Tookes v. State, 842 So. 2d 1063, 1065 (Fla. 4th DCA 2003) (finding that the trial court erred by stating to jury that the use of a firearm was “not an element” of armed robbery). Allowing the jury to find Louis guilty of unarmed robbery was inconsistent with his waiver of lesser included offenses. IV. While we find that instructions for unarmed burglary and unarmed robbery were inconsistent with Louis’ waiver of lesser included offenses, we find that he is not entitled to relief. As stated above, a defendant may waive lesser included offenses only to the extent that the State consents. While the State gave an incorrect argument for permitting instruction on unarmed burglary and unarmed robbery, it is clear that the State did not consent to Louis’ waiver of instruction on these two offenses. Because the State had a right to withhold consent, Louis suffered no prejudice from the State’s incorrect argument for permitting instruction on the two lesser included offenses. The fact that the trial court relied upon a different rationale for permitting the instructions does not matter, if “it reached the right result, even if for the wrong reason . . . .” See Francis v. State, 307 So. 3d 1011, 1012 n.3 (Fla. 5th DCA 2020). Accordingly, there was no error below. 6 AFFIRMED. RAY, C.J., and ROBERTS, J., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Damaris E. Reynolds, Assistant Attorney General, Tallahassee, for Appellee. 7