STATE OF FLORIDA, APPELLANT,
v.
JAY RUSSELL MCNEILL, APPELLEE
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Florida appealed the dismissal of an information charging McNeil with possession of stolen property under the Theft statute. The court reversed, holding that the information sufficiently alleged the required specific intent to appropriate property, and that no allegation of intent to permanently deprive was necessary.
The information sufficiently charges the crime of possession of stolen property because it contains allegations that the defendant used the property with intent to appropriate it to his own use or another's use, knowing it was stolen. No allegation of intent to permanently deprive is required; the statute requires only specific intent to appropriate the property.
[1] The crime of theft under Florida Statutes Section 812.014 requires specific criminal intent, which can be satisfied by an intent to deprive the owner of a right or benefi…
[2] The omission of the word "unlawfully" from the theft statute does not alter the requirement of specific criminal intent.
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Join FLexlaw to unlock all legal intelligence“Under Section 812.014(1), Florida Statutes (1979), the actual taking or theft of property is defined as obtaining the property with a specific criminal intent. The intent required for the crime of theft is a) to deprive the person from whom the property is taken of a right to that property or a benefit therefrom or b) to appropriate the property to the use of one other than the person entitled thereto.”
Defines the requisite specific intent for theft under the statute, establishing that intent to appropriate is sufficient without requiring intent to permanently deprive.
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Join FLexlaw to unlock all legal intelligenceMcNeil was charged with unlawfully using a 1973 Red Ford Truck motor vehicle, knowing it was stolen, with intent to appropriate the property to his ow…
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did . .. unlawfully use, or endeavor to use the property of Daniel Salvatore, to-wit: a 1973 Red Ford Truck motor vehicle, with the intent to appropriate the property to his own use or to the use of any person not entitled thereto, knowing or having reason to know said property was stolen, contrary to F.S. § 812.-014(l)(b), and F.S. § 812.014(2)(b) (emphasis added).
The state contended below and maintains here that the crime charged under the omnibus “Theft” statute is possession of stolen property rather than common law larceny.
Dismissal was based upon failure to include an allegation that there was specific intent to permanently deprive the victim of his property.
Under Section 812.014(1), Florida Statutes (1979), the actual taking or theft of property is defined as obtaining the property with a specific criminal intent. The intent required for the crime of theft is a) to deprive the person from whom the property is taken of a right to that property or a benefit therefrom or b) to appropriate the property to the use of one other than the person entitled thereto.
Prior to the enactment of Section 812.014, larceny was defined in Section 812.021, Florida Statutes (1975), as the taking of property from a person “with the intent to unlawfully deprive or defraud the true owner of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person.”
In comparing the two statutes, it is apparent that the only difference in the definitions of the requisite intent is the deletion in Section 812.014 of the word “unlawfully.” As held in State v. Allen, 362 So. 2d 10 (Fla.1978), this omission does not alter the specific criminal intent required. Accordingly, under both statutes, an intent to appropriate property to the use of one other than the owner is equated with the unlawful intent to deprive the owner of his property. Apparently to the contrary is Faisan v. State, 390 So. 2d 728 (Fla. 5th DCA 1980) in which, on rehearing, the court narrowly defined the intent required by Allen and Bell v. State, 394 So. 2d 979 (Fla.1981) as the intent to permanently deprive the owner of property. Neither Allen nor Bell so narrowly define the required intent. Rather, Allen concluded only that the legislature had not eliminated specific criminal intent from Section 812.014 and Bell held that specific intent is still a requisite element of the crime of robbery. See, also, Baxley v. State (Fla. 5th DCA Case No. 79-36, opinion filed November 25, 1981).
Section 812.014 now encompasses not only the actual theft of property but also the crime of possession of stolen property. State v. Lewis, 364 So. 2d 1223 (Fla.1978); State v. Houck, 374 So. 2d 86 (Fla. 4th DCA 1979). Under the statute it is a crime for one to use the property of another “with the intent to appropriate the property to his own use or the use of any person not entitled thereto.” Therefore, an Information, as the one in the present case, containing allegations of these elements sufficiently charges the crime, including its required specific intent. We note that the Information here also correctly contains the allegation necessary to a charge of possession of stolen property that defendant knew or had reason to know the property was stolen. State v. Houck, 374 So. 2d 86 (Fla. 4th DCA 1979).
Accordingly, we reverse and remand with instructions to reinstate the Information, and for further appropriate proceedings.
REVERSED AND REMANDED.
ANSTEAD and DELL, JJ., concur.
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State v. Dunmann, 427 So. 2d 166 (Fla. 1983)…McDonald, justice. The state has petitioned for review of Baxley v. State, 411 So. 2d 194 (Fla. 5th DCA 1981), and Dunmann v. State, 410 So. 2d 932 (Fla. 5th DCA 1981), because of conflict with State v. McNeill, 407 So. 2d 1021 (Fla. 4th DCA 1981). We have juris [*167] diction pursuant to article V, section 3(b)(3), Florida Constitution, and quash Baxley and Dunmann. The state charged Burnice Baxley, Danny Lee Harvey, Frederick Hazelwood, Glenn Barna, Andre Taylor, and Ke…
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G.C. v. State, 560 So. 2d 1186 (Fla. 3d DCA 1990)…” the property within the statutory meaning. Use alone, however, is not enough. The statute requires an additional element: an intent, in substance, to work a deprivation or appropriation of the owner’s property. Id. See generally State v. McNeill, 407 So. 2d 1021, 1022 (Fla. 4th DCA 1981), approved, State v. Dunmann, 427 So. 2d 166, 169 (Fla.1983). In the context of an automobile theft, that intention would be shown, if not by aid or participation in the taking of the vehicle, then by some exercise of domini…
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Morris v. State, 428 So. 2d 700 (Fla. 1st DCA 1983)…RD (Retired), Associate, J., concur. . This opinion should not be construed as addressing the issue of whether the specific intent to permanently deprive the owner of his property remains an essential element of robbery. Compare State v. McNeill, 407 So. 2d 1021 (Fla. 4th DCA 1981), and Baxley v. State, 411 So. 2d 194 (Fla. 5th DCA 1981) (Justice Cowart, dissenting opinion), reversed, State v. Dunmann, 427 So. 2d 166, 1983 FLW 18 (Fla.1983), with Green v. State, 414 So. 2d 1171, 1172 n. 3 (Fla. 5th DCA 1982…
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
- State v. Allen, 362 So. 2d 10 (Fla. 1978)
- Bell v. State, 394 So. 2d 979 (Fla. 1981)
- State v. Lewis, 364 So. 2d 1223 (Fla. 1978)
- Faison v. State, 390 So. 2d 728 (Fla. 5th DCA 1980)
- State v. Houck, 374 So. 2d 86 (Fla. 4th DCA 1979)