VINCENT JAMES LUMIA, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Defendant Lumia appeals his conviction for grand larceny, challenging the trial court's instruction on this lesser included offense where the information did not specify the amount taken. The court affirms the conviction, holding that because defendant affirmatively sought the grand larceny instruction and presented no argument that the amount was less than $100, any error was not fundamental and was waived.
The court held that the conviction of grand larceny does not constitute fundamental error under these circumstances because the defendant affirmatively sought the grand larceny instruction as a tactical choice, presented no argument at trial that the amount was not in excess of $100, and was neither prejudiced nor embarrassed in his defense.
[1] A defendant who affirmatively requests jury instructions on lesser included offenses, including grand larceny, waives the right to challenge a conviction for that offense…
[2] A conviction for grand larceny based on an information that does not allege the value of the property taken in excess of $100 may constitute fundamental error if the defe…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a defendant cannot be convicted of grand larceny in a situation where the information does not assert the value of the thing taken as being in excess of $100”
Statement of the rule from Haley and Tillman cases that would normally preclude the conviction at issue
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDefendant was charged with armed robbery for taking money during what he claimed was a fake drug deal. The information did not allege the specific amo…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Tactical Decisions By Counsel cases and more on FLexlaw
BERANEK, Judge.
Defendant appeals from a conviction of grand larceny after a jury trial. Defendant was charged by a two-count information with armed robbery in that he took by force “certain property of value, to-wit: money being good and lawful money of the United States of America.” The information did not contain any allegation as to the amount taken.
The case proceeded to trial and defendant took the stand and testified he had taken approximately $400 from the victims during a fake drug deal but that it was not an armed robbery. After the evidence was presented, defense counsel requested that the court instruct the jury on grand larceny and petit larceny as lesser included offenses of armed robbery. The trial court gave the instructions as requested by defense counsel. The jury found defendant guilty of grand larceny.
On appeal defendant relies on Tillman v. State, 329 So. 2d 370 (Fla. 2d DCA 1976), and Haley v. State, 315 So. 2d 525 (Fla. 2d DCA 1975). Both of these cases are to the effect that a defendant cannot be convicted of grand larceny in a situation where the information does not assert the value of the thing taken as being in excess of $100. Haley holds that defense counsel’s failure to object to a grand larceny instruction in such a circumstance cannot be held to be a waiver and concludes that a conviction óf grand larceny under such circumstances constitutes fundamental error. We do not find the Haley and Tillman cases controlling in the instant situation because here the defendant affirmatively sought the court’s instruction of grand larceny. There was absolutely no argument at trial that the amount taken was not in excess of $100 and it appears the defense was actually based on the theory that while defendant might be guilty of grand larceny, he was not guilty of armed robbery. Defense counsel chose this tactical approach before the jury. Also of application is the case of Thompson v. State, 368 So. 2d 670 (Fla. 3d DCA 1979). Therein, the Third District speaking through Judge Alan Schwartz stated as follows:
Because he made no objections below either to the court’s instructions or to the pertinent verdict form, we do not con sider his alternative claim, raised for the first time on appeal, that the elements of the lesser included crime of which he was convicted were not alleged in the information. Under the circumstances of this case, which are very similar to those involved in Andrews v. State, 309 So. 2d 576, 577 (Fla. 1st DCA 1975) (specially concurring opinion), the alleged error was not a fundamental one which may be reviewed notwithstanding the defendant’s failure to preserve the point below. Andrews v. State, supra; see also Smith v. State, 344 So. 2d 905 (Fla. 3d DCA 1977), cert. denied, 353 So. 2d 678 (Fla.1977); McPhee v. State, 254 So. 2d 406 (Fla. 1st DCA 1971); compare Minor v. State, 329 So. 2d 30, 31 (Fla. 2d DCA 1976), and cases cited.
We conclude that the error complained of here was not, under the particular circumstances of the case, fundamental. We have carefully scrutinized the record and find without question that appellant was neither prejudiced nor embarrassed in his defense. We, therefore, decline to apply the Haley and Tillman rationale, and the judgment and conviction below is hereby affirmed.
AFFIRMED.
DOWNEY, C. J., and CROSS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
RAY v. State, 403 So. 2d 956 (Fla. 1981)…Odom v. State, 375 So. 2d 1079 (Fla.1st DCA 1979), cert. denied, 386 So. 2d 640 (Fla.1980); Smith v. State, 375 So. 2d 864 (Fla.3d DCA 1979), cert. denied, 383 So. 2d 1202 (Fla.1980); Ray v. State, 374 So. 2d 1002 (Fla.2d DCA 1979); Lumia v. State, 372 So. 2d 525 (Fla.4th DCA 1979), cert. denied, 381 So. 2d 767 (Fla.1980); Thompson v. State, 368 So. 2d 670 (Fla.3d DCA 1979); Jones v. State, 358 So. 2d 37 (Fla.4th DCA), cert. denied, 364 So. 2d 887 (Fla.1978); McPhee v. State, 254 So. 2d 406 (Fla.1st DCA 1971…
-
Hinson v. State, 436 So. 2d 437 (Fla. 4th DCA 1983)…So. 2d 525 (Fla. 2d DCA 1975). HERSEY, HURLEY and DELL, JJ., concur. . A review of the trial record fails to disclose any conduct by the defendant which would estop his right to assert the error complained of on appeal. But cf. Lumia v. State, 372 So. 2d 525 (Fla. 4th DCA 1979).…
-
Smith v. State, 375 So. 2d 864 (Fla. 3d DCA 1979)…he appellant is therefore precluded from now contending that he was improperly convicted of a crime not charged in the information. Odom v. State, 375 So. 2d 1079 (Fla. 1st DCA 1979); Ray v. State, 374 So. 2d 1002 (Fla. 2d DCA 1979); Lumia v. State, 372 So. 2d 525 (Fla. 4th DCA 1979); Thompson v. State, 368 So. 2d 670 (Fla. 3d DCA 1979); Jones v. State, 358 So. 2d 37 (Fla. 4th DCA 1978), cert. denied, 364 So. 2d 887 (Fla.1978); Smith v. State, 344 So. 2d 905 (Fla. 3d DCA 1977), cert. denied, 353 So. 2d 678 (F…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McPHEE v. State, 254 So. 2d 406 (Fla. 1st DCA 1971)
- Haley v. State, 315 So. 2d 525 (Fla. 2d DCA 1975)
- Minor v. State, 329 So. 2d 30 (Fla. 2d DCA 1976)
- Andrews v. State, 309 So. 2d 576 (Fla. 1st DCA 1975)
- Thompson v. State, 368 So. 2d 670 (Fla. 3d DCA 1979)
- Smith v. State, 344 So. 2d 905 (Fla. 3d DCA 1977)
- Tillman v. State, 329 So. 2d 370 (Fla. 2d DCA 1976)