        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                           JERMAINE SWATTS,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D13-891

                              [August 6, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara McCarthy, Judge; L.T. Case No. 10-4947
CF10A.

  Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

PEREZ, GLADYS, Associate Judge.

   Defendant was charged with burglary of a dwelling and grand theft.
After a jury trial, the defendant was convicted of trespass of a structure, a
lesser-included offense, and grand theft as charged in the second count.
On appeal, defendant raises several issues; however, we write to address
only his contention that he is entitled to reversal of the trespass conviction
because the jury was allowed to consider multiple factual theories where
the information charged only a single count of burglary. We agree with
defendant’s contention, and based upon Perley v. State, 947 So. 2d 672
(Fla. 4th DCA 2007), reverse and remand for a new trial only as to the
trespass. As to all other issues, including defendant’s argument that he
was denied a unanimous verdict as to the grand theft charge, we affirm.

   Defendant’s neighbor returned home from work on March 16, 2010,
and was approached by the defendant. The defendant stated that earlier
that day he had entered the neighbor’s apartment, upon seeing smoke,
and turned off the stove. The next evening, March 17, the neighbor’s wife
noticed that jewelry and a piggy bank containing $200 were missing. On
March 18, the neighbor, while changing a punctured tire, noticed a light
in the window of his apartment and called the police. A window had been
broken, the front door was open, and computers, a camera, a camcorder,
and an MP3 player were missing.

   In his statement to the police, defendant admitted he was in the
apartment on March 16, accompanied by a co-defendant. Defendant
insisted that the co-defendant had taken the jewelry on the 16th and that
a man named “Jit” committed the second burglary. Items from the
neighbor’s apartment were recovered from a pawn shop, having been
pawned by a Mr. Baker, who had gone to the pawn shop with the defendant
and co-defendant.

    Defendant argues he is entitled to reversal of his convictions on the
ground that he was denied a unanimous verdict as a consequence of the
State’s charging a single count of each offense, but presenting multiple
factual theories to support a conviction. We agree with Defendant only as
to the trespass conviction.

    The information charged the defendant with a single count of burglary,
alleging the defendant entered the apartment sometime between March
16th and March 18th. Despite this, in opening, the State advised the jury
that not only did the defendant burglarize the apartment on March 16th,
but he “broke back into the [neighbor’s] home two days later to steal more
and to continue harassing.” At the close of the evidence, defense counsel
asked that the court instruct the jury not to consider the alleged second
burglary as it had not been investigated. The State insisted there was
enough evidence to permit the matter to be considered by the jury. The
trial court denied defense counsel’s request. In closing argument, the
State argued the evidence established the defendant entered the
apartment on the 16th and on the 18th, even suggesting at one point that
the defendant had entered the apartment a third time, as he had been the
one who had turned on the stove. The prosecutor invited the jury to
consider the defendant’s multiple entries into the apartment in
determining whether the defendant was guilty. The prosecutor said, “Do
you really have a reasonable doubt about whether at some point, between
the 16th and the 18th he went into [the] home, either one is good enough,
at some point? Really?”

    In Perley v. State, 947 So. 2d 672 (Fla. 4th DCA 2007), the defendant
was charged with one count of escape and two counts of resisting an
officer. With regard to the escape, there was evidence at trial that, during
the initial attempts to detain the defendant, he broke away from police and

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was pursued. The defendant was taken to the hospital and, while at the
hospital, the defendant again attempted to escape. The information did
not include the factual allegations surrounding the escape and, at trial,
the State told the jury it could convict the defendant based upon either the
flight from police at the scene or the subsequent flight at the hospital. 947
So. 2d at 674. We held the trial court fundamentally erred by allowing the
jury to deliberate on two separate instances of escape where only a single
instance was charged in the information as the effect was to deprive the
defendant of his constitutional right to a unanimous jury verdict. Id.; see
also Chaffin v. State, 121 So. 3d 608 (Fla. 4th DCA 2013), review denied,
139 So. 3d 296 (Fla. 2014).

    Initially, we note that the issue was sufficiently preserved, as defense
counsel attempted to have the judge preclude the State from making the
very argument it made to the jury. Here, as in Perley and Chaffin, the
prosecutor invited the jury to consider either entry in reaching its verdict,
telling them “either one is good enough.” While the jury ultimately
convicted the defendant of trespass, a lesser-included offense of the
charged burglary, this does not alter the fact that some of the jurors may
have done so based on the March 16th entry, while others may have done
so solely based on the March 18th entry. Accordingly, defendant’s
conviction for trespass is reversed and this cause is remanded.

   Affirmed in part, Reversed in part, and Remanded.

TAYLOR and CONNER, JJ., concur.

                            *         *        *

   Not final until disposition of timely filed motion for rehearing.




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