KENNETH ROGER MCINTYRE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth McIntyre was convicted of attempted grand theft, a crime that the court had recently held does not exist as a separate offense. The court affirmed the conviction but remanded to correct the judgment to reflect a conviction for grand theft instead, finding that McIntyre's own attorney requested the attempted grand theft instruction and therefore he cannot complain of the error.
Although one ordinarily cannot be convicted of a nonexistent crime, McIntyre cannot complain because his own attorney promoted the error by specifically requesting the instruction. The court affirmed but remanded to correct the conviction from attempted grand theft to grand theft of the second degree, since attempted grand theft is merged into the grand theft statute.
[1] A defendant cannot be convicted of a nonexistent crime.
[2] A defendant may be estopped from complaining of a conviction for a nonexistent crime when the defendant's attorney requested the jury instruction for that crime.
Previewing 2 of 5 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“Ordinarily, one cannot be convicted of a nonexistent crime.”
Establishes the general legal principle that McIntyre relies upon, but which the court will carve out an exception to.
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Join FLexlaw to unlock all legal intelligenceMcIntyre was charged with and convicted of attempted grand theft and burglary. At trial, McIntyre's attorney specifically requested a jury instruction…
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GRIMES, Chief Judge.
Appellant complains that he was convicted of the crime of attempted grand theft, despite the fact that this court recently held that there is no crime of attempted grand theft. Miles v. State, 374 So. 2d 1167 (Fla. 2d DCA 1979).
Ordinarily, one cannot be convicted of a nonexistent crime. Vogel v. State, 365 So. 2d 1079 (Fla. 1st DCA 1979). However, the peculiar circumstances of this case warrant an exception to the general rule.
In the first place, appellant’s attorney specifically requested the instruction on attempted grand theft. The state objected on the ground that there was no crime of attempted grand theft, even though at that time we had not yet rendered our decision in Miles. In an abundance of caution, the court granted appellant’s request. We do not think appellant should now be able to complain of an error which he promoted. We find analogous the line of cases which have held that a person cannot complain of his conviction for a crime which is not a lesser included offense of the crime with which he was charged when it appears that he induced the error. E.g., Jones v. State, 358 So. 2d 37 (Fla. 4th DCA 1978). We hasten to emphasize that this is not a case in which appellant simply failed to object to a proposed instruction on a nonexistent crime. See Vogel v. State.
Moreover, attempted grand theft is not nonexistent in the sense that the activity encompassed by such a charge is not a crime. Rather, the legislature has simply merged this crime with the crime of grand theft by the use of the phrase “endeavors to obtain or to use” in the theft statute, Section 812.014, Florida Statutes (1979). Miles v. State. Thus, evidence of an attempt to commit grand theft can convict a person of the crime of grand theft. Since there was competent and substantial evidence that at the very least appellant attempted to commit grand theft, no prejudice could result from construing the verdict as a finding of guilt for grand theft. We affirm the judgments 1 but remand the case with instructions to correct the judgment on attempted grand theft to reflect a conviction for grand theft of the second degree.
BOARDMAN and RYDER, JJ., concur. . Appellant was also convicted of burglary. His remaining two points on appeal which were directed to both crimes are without merit.
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Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)…flects the intent and finding of the jury. Cotton v. State, 395 So. 2d 1287, 1290 (Fla. 1st DCA 1981); Simpkin v. State, supra; see also, Tucker v. State, 388 So. 2d 6 (Fla. 3d DCA 1980), review denied, 392 So. 2d 1380 (Fla.1981); McIntyre v. State, 380 So. 2d 1064 (Fla. 2d DCA 1980). The claim of error in the prosecutor’s final argument is also without substance. White v. State, 377 So. 2d 1149 (Fla.1979), cert. denied, - U.S. -, 101 S.Ct. 129, 66 L.Ed.2d 54 (1980); Robinson v. State, 400 So. 2d 172 (Fla.198…
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State v. Sykes, 434 So. 2d 325 (Fla. 1983)…d any intention of allowing the general attempts statute3 to operate with reference to them. Therefore, there is no such offense in Florida as attempted second-degree grand theft. Bell v. State, 382 So. 2d 107 (Fla. 5th DCA 1980); McIntyre v. State, 380 So. 2d 1064 (Fla. 2d DCA 1980); Miles v. State, 374 So. 2d 1167 (Fla. 2d DCA 1979). The jury should not have been instructed that attempt was a lesser included offense, nor should they have been given the option of finding respondent guilty of this nonexistent…1 / 2
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Brown v. State, 400 So. 2d 510 (Fla. 2d DCA 1981)…HOBSON, Acting Chief Judge. Appellant’s judgment and sentence as to attempted grand theft is reversed. See Miles v. State, 374 So. 2d 1167 (Fla. 2d DCA 1979), and McIntyre v. State, 380 So. 2d 1064 (Fla. 2d DCA 1980). Further, in view of the fact that appellant was insolvent, the trial court erred in assessing him court costs in the amount of $500 and requiring him to pay $10 to the Crime Victim Fund. See Hensley v. State, 363 So. 2d 352 (Fla.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 358 So. 2d 37 (Fla. 4th DCA 1978)
- Miles v. State, 374 So. 2d 1167 (Fla. 2d DCA 1979)
- Vogel v. State, 365 So. 2d 1079 (Fla. 1st DCA 1979)