
    Justo L. MIRANDA, Appellant, v. The STATE of Florida, Appellee.
    No. 93-2378.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1994.
    Rehearing Denied Feb. 1, 1995.
    
      Bennett H. Brummer, Public Defender, and Albert W. Guffanti, Sp. Asst. Public Defender, for appellant.
    Robert A. Butterworth, Atty. Gen., and Mark Rosenblatt and Elliot B. Kula, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and COPE, JJ.
   PER CURIAM.

Justo L. Miranda appeals his conviction for burglary of an unoccupied dwelling. We affirm.

Defendant contends that he should be granted a new trial on account of jury confusion over the instructions in this case. Defendant bases his argument on a note sent out by the jury after the deliberations began.

Defendant was brought to trial on the charges of criminal mischief and burglary. The court informed the jury that those were the charges. In opening statements, the prosecution and defense reiterated that defendant was charged with both offenses.

At the conclusion of all of the evidence the trial court granted the defendant’s motion for judgment of acquittal on the criminal mischief count. This was done out of the presence of the jury. After the motion was granted, the trial court did not tell the jury that the criminal mischief charge had been dismissed. Instead, counsel proceeded directly to closing arguments.

The trial court then instructed the jury on the sole remaining charge, which was burglary of an unoccupied structure. The jury was instructed, inter alia, that “At the time of entering or remaining in the structure the defendant had a fully-formed conscious intent to commit the offense of criminal mischief in that structure.” The court went on to instruct the jury on the elements of criminal mischief as a portion of the burglary charge.

After the jury retired, it sent out a note saying, “Your Honor, is there only one charge? Because in the beginning there were two charges, burglary and criminal mischief.” The court, with the agreement of counsel, advised the jury, “There is only one charge for you to deliberate.” Thereafter, the jury returned a verdict finding defendant guilty as charged.

By motion for new trial, the defendant argued that there must have been jury confusion regarding the criminal mischief charge. Defendant contends that the jury note is evidence of confusion and that he should be given a new trial. We disagree. At the beginning of trial the jury had been told that there were two charges it would be required to decide: burglary and criminal mischief. At the conclusion of the case, it was given instructions on the charge of burglary, with criminal mischief being addressed as an element of the burglary charge. The jury had never been told that the independent criminal mischief charge had been dismissed. The note sent out by the jury is natural and understandable, but it does not reflect any inability to understand the jury instructions. It only requests clarification as to whether burglary was the sole charge to be decided, or whether there were two separate charges the jury was to determine.

The trial court in this case had granted a judgment of acquittal as to the charge of criminal mischief. The court denied the motion for judgment of acquittal as to the burglary count, and properly so. In order to prove the offense of burglary, it was necessary only to show, inter alia, that at the time of entry into the building, the defendant had the fully formed intent to commit the offense of criminal mischief — not that the defendant had committed the completed offense of criminal mischief. See generally Toole v. State, 472 So.2d 1174 (Fla.1985). As to the burglary count, the trial court concluded that there was sufficient evidence to go to the jury, and the defendant does not contend otherwise on this appeal. Similarly, the defendant does not claim that there was any error with regard to the jury instructions.

In sum, there was sufficient evidence to go to the jury. The jury instructions were correct. The jury note does not reveal any difficulty in understanding the jury instructions, but only requests clarification regarding the number of charges being deliberated. There is no basis for a new trial.

Affirmed.

SCHWARTZ, C.J., and COPE, J., concur.

BASKIN, Judge

(dissenting).

I am unable to agree with the majority’s conclusion that the jury’s question does not evidence any confusion. One does not seek clarification if one is not confused: confusion as to the charges against defendant warrants granting defendant’s motion for new trial.

“A misleading jury instruction creates both fundamental and reversible error.” Pugh v. State, 624 So.2d 277, 279 (Fla. 2d DCA 1993). The instruction impermissibly defined the submitted charge of burglary, in terms of criminal mischief, a charge of which the court had acquitted defendant by granting the motion for judgment of acquittal. See Keys v. State, 606 So.2d 669 (Fla. 1st DCA 1992). The court should not give misleading instructions, see Butler v. State, 493 So.2d 451 (Fla. 1986), and in view of the jury’s question, there exists a reasonable possibility that the erroneous instruction affected the verdict. Mason v. State, 584 So.2d 165 (Fla. 1st DCA 1991). The jury’s question reflects its inability to reconcile the instructions with the charge it was required to resolve. An instruction without reference to criminal mischief would have obviated the jury’s confusion and there would have been no question seeking clarification. Moreover, the majority’s conclusion that the court found sufficient evidence of defendant’s intent to commit criminal misehief and granted the motion for acquittal on other grounds is unsupported by the record, and may not be assumed on appeal. Because there is a reasonable possibility that the instruction confused the jury, I would reverse the conviction and remand for a new trial. 
      
      . Although the State argues that defendant's position is procedurally barred, we conclude that we may reach the merits of defendant’s claim. See. Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987).
     
      
      . The correctness of that ruling is not before us.
     
      
      . At the close of the state’s case the defense moved for judgment of acquittal on both counts. The following discussion regarding the criminal mischief count ensued:
      Ms. Gray: The motion for judgment of acquittal with respect to the criminal mischief— The Court: Has anybody read this Information except me? There is nothing in the Information about any clothing. At least I can't find anything. It talks about a door and ceiling.
      
        
      
      [I]s there any evidence before me as to when the door was broken or who broke the door? I understand there is circumstantial evidence: Because he came out, he broke the door. But is there any evidence before this jury as to when the door was broken? Is there anything that would stop them from thinking the door had been opened, and two people walked in and decided to do a burglary?
      
        
      
      I am trying to find out what ties Mr. Miranda to breaking the door. According to Mr. Coll, it was broken by a truck. He said so.
      
        
      
      You have to prove the allegations that are in the Information, counsel. I am not telling the state how to direct this.
      
        
      
      Once again, you are telling me the only evidence that these people broke the door and the ceiling is by virtue of the fact they were on the property. That's the only thing that ties them in?
      Mr. Mansfield: Circumstantial, yes.
      The Court: Anything further?
      Ms. Gray: Judge, no, not at this time.
      The Court: All right. The motion is denied as to Count II; it's granted as to Count I.
      [T. 342 — 349]. Nothing in the discussion indicates any consideration of intent or any matter other than the state's failure to prove the allegation in the Information.
     