JOHN H. LOWERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant John Lowery appealed his resentence from a split sentence to a straight 25-year incarceration term, challenging it under North Carolina v. Pearce and arguing the robbery informations were fundamentally defective for failing to allege the required mental intent element. The court affirmed the resentence and rejected both contentions.
The resentencing is legal and does not violate North Carolina v. Pearce. The robbery informations were not fundamentally defective because the use of the word "steal" adequately alleges all necessary elements of larceny, including the required intent.
[1] A defendant who successfully attacks a sentence and is resentenced to a harsher sentence does not violate North Carolina v. …
[2] An information charging robbery is not fundamentally defective for failing to explicitly state the intent to permanently deprive the possessor of property when the inform…
Previewing 2 of 2 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“On appeal he claims his resentencing is illegal under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This question was first raised in the dissent in Lauxman v. State, 402 So. 2d 432 (Fla. 5th DCA 1981), but since then has been decided many times against appellant's contention.”
Establishes that the Pearce claim had been repeatedly rejected in prior cases and was not supported by precedent.
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Join FLexlaw to unlock all legal intelligenceLowery was initially sentenced to 25 years split as 15 years incarceration followed by 10 years probation. He successfully challenged this sentence ba…
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COWART, Judge.
Appellant was sentenced to 25 years, split 15 years incarceration to be followed by 10 years probation. He successfully attacked his sentence on the basis of Villery v. Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981), and was resentenced to a straight 25 years incarceration. On appeal he claims his resentencing is illegal under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This question was first raised in the dissent in Lauxman v. State, 402 So. 2d 432 (Fla. 5th DCA 1981), but since then has been decided many times against appellant’s contention. See Willis v. State, 413 So. 2d 1290 (Fla. 3d DCA 1982); Adams v. State, 414 So. 2d 1079 (Fla. 1st DCA 1982), question certified, 414 So. 2d 1079 at 1081 (Fla. 1st DCA May 26,1982) [1982 FLW 1109]; Jackson v. State, 412 So. 2d 384 (Fla. 5th DCA 1982); Beech v. State, 411 So. 2d 1384 (Fla. 1st DCA 1982); Noles v. State, 407 So. 2d 370 (Fla. 2d DCA 1981); Williams v. State, 405 So. 2d 436, 437 (Fla. 1st DCA 1981); Joyce v. State, 404 So. 2d 850 (Fla. 4th DCA 1981); Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981).
Likewise, the point that the infor-mations charging Lowery with robbery did not set forth the element of mental intent — that Lowery intended to permanently deprive the possessor of the property taken — required by Bell v. State, 394 So. 2d 979 (Fla.1981), and were therefore fundamentally defective (see, e.g., Gray v. State, 404 So. 2d 388 (Fla. 5th DCA 1981)), has been resolved against Lowery on the basis that, by the use of the word “steal” such infor-mations incompletely allege all the necessary elements of larceny. See Green v. State, 414 So. 2d 1171 (Fla. 5th DCA 1982).
AFFIRMED.
ORFINGER, C. J., and SHARP, J., concur.
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Keller v. State, 432 So. 2d 672 (Fla. 5th DCA 1983)…U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) 1, Keller contends that he was improperly sentenced to a more severe prison term than originally imposed. This court has previously decided this issue against Keller’s contention. See Lowery v. State, 418 So. 2d 1123 (Fla. 5th DCA 1982). Keller also contends the trial court erred in resentencing him in his absence. Florida Rule of Criminal Procedure 3.180(a)(9) provides that the defendant shall be present at the “imposition of sentence.” The state apparently ac…
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Harpham v. State, 435 So. 2d 375 (Fla. 5th DCA 1983)…§ 812.-13(2)(a), by force, violence, assault or putting in fear, take away from the person or custody of [the victim] certain property .... ” Although this may have been an imperfect allegation,1 it was not fundamentally deficient. Lowery v. State, 418 So. 2d 1123 (Fla. 5th DCA 1982); Green v. State, 414 So. 2d 1171 (Fla. 5th DCA 1982). The victim testified at trial that Harp-ham approached him at a bar and offered to set him up with a girl for twenty dollars. Harpham took him to a hotel room where he was as…
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Hampton v. State, 421 So. 2d 775 (Fla. 5th DCA 1982)…appellant’s original two sentences were vacated on appeal.1 We have examined the record and find the trial judge adequately extended allocution and did not err in modifying the split sentence to a sentence of confinement only. See Lowery v. State, 418 So. 2d 1123 (Fla. 5th DCA 1982) [1982 FLW 1846], Appellant also complains that while the trial judge specifically gave him credit against the first of the two new sentences for the 126 days he spent in the county jail before his original sentence, as directed…
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 (16 total)
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Bell v. State, 394 So. 2d 979 (Fla. 1981)
- Lewis v. State, 402 So. 2d 482 (Fla. 2d DCA 1981)
- Green v. State, 414 So. 2d 1171 (Fla. 5th DCA 1982)
- Gray v. State, 404 So. 2d 388 (Fla. 5th DCA 1981)
- Holmes v. State, 405 So. 2d 436 (Fla. 5th DCA 1981)
- Beech v. State, 411 So. 2d 1384 (Fla. 1st DCA 1982)
- Williams v. State, 405 So. 2d 436 (Fla. 1st DCA 1981)
- Adams v. State, 414 So. 2d 1079 (Fla. 1st DCA 1982)