JOSEPH H. COUNCIL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed grand theft conviction where state failed to prove defendant knew check was worthless, as required element of theft under Fla. Stat. § 812.014.
A conviction for grand theft requires proof that the defendant knew the check was worthless; circumstantial evidence of desire to hasten a transaction does not satisfy this requirement.
[1] Conviction for grand theft requires proof that defendant knew the check was worthless; circumstantial evidence of haste in completing transaction is insufficient to estab…
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Join FLexlaw to unlock all legal intelligence“Section 812.014, Florida Statutes (1981) requires proof of intent to deprive another person of a right to or benefit from the property involved.”
Court stating the statutory requirement for grand theft conviction.
Defendant Council presented a $175 check to a package store employee for cashing. The check was drawn on a closed account, but Council claimed he beli…
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BASKIN, Judge.
Defendant Joseph Council was convicted of grand theft second degree based upon his presentation of a $175 check to a package store employee for cashing. The trial court withheld adjudication and placed him on probation for one year. We reverse.
Section 812.014, Florida Statutes (1981) requires proof of intent to deprive another person of a right to or benefit from the property involved. The state presented no evidence of Council’s intent to commit theft, State v. Allen, 362 So. 2d 10 (Fla. 1978), and failed to establish that Council knew the cheek he had received in payment for homosexual activities was worthless. See Myers v. State, 115 Fla. 627, 155 So. 797 (1934); Anderson v. State, 338 So. 2d 209 (Fla. 3d DCA 1976), cert. denied, 352 So. 2d 174 (Fla.1977); Spurlock v. State, 281 So. 2d 586 (Fla. 4th DCA 1973). The account on which the check was drawn had been closed, but the state did not call the drawer of the check as a witness. Thus, Council’s explanation that he believed the check to be good was unrefuted and constituted a reasonable hypothesis of innocence requiring reversal. Fisk v. State, 138 Fla. 815, 190 So. 10 (1939); A.R. v. State, 393 So. 2d 1174 (Fla. 3d DCA 1981). The circumstantial evidence that a caller had attempted to verify the check while Council left the store may have demonstrated Council’s desire to hasten the transaction, but did not establish that Council knew the check was worthless.
Reversed.
BARKDULL, Judge,
dissenting.
I respectfully dissent. It was the province of the fact-finder to determine whether, under the circumstantial evidence, the hypothesis of innocence advanced by the defendant was not reasonable. Newberry v. State, 442 So. 2d 334 (Fla. 5th DCA 1983). It is not for an appeal court to substitute its judgment for that of the fact-finder. State v. Smith, 249 So. 2d 16 (Fla.1971); E.Y. v. State, 390 So. 2d 776 (Fla. 3d DCA 1980); Wright v. State, 351 So. 2d 1127 (Fla. 1st DCA 1977). I cannot say under the evidence presented that the fact-finder could not have reached the conclusion it did as to the defendant’s guilt and therefore I would affirm.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dunn v. State, 454 So. 2d 641 (Fla. 5th DCA 1984)…788 (Fla.1976), criticized in Tibbs v. State, 397 So. 2d 1120 (Fla.1981); Solomon v. State, 115 Fla. 310, 156 So. 401 (Fla.1934); Smith v. State, 239 So. 2d 284 (Fla. 2d DCA 1970), quashed, State v. Smith, 249 So. 2d 16 (Fla.1971); Council v. State, 443 So. 2d 440 (Fla. 3d DCA 1984); Huggins v. State, 453 So. 2d 835 (Fla. 5th DCA 1984). . Tibbs is the subject of a case comment. See Comment, The Sufficiency-Weight Distinction-A Matter of Life or Death, 38 U.Miami L.Rev. 147 (1983). . The majority also states…1 / 2
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B.P. v. State, 515 So. 2d 423 (Fla. 3d DCA 1987)…inding of intent to commit theft. In a prosecution for theft under section 812.014, Florida Statutes (1983), the state must prove the accused’s “intent to deprive another person of a right to or benefit from the property involved.” Council v. State, 443 So. 2d 440 (Fla. 3d DCA 1984). To sustain an adjudication of delinquency, proof of the juvenile’s guilt must be established beyond a reasonable doubt. J.D.D. v. State, 268 So. [*424] 2d 457 (Fla. 4th DCA 1972). While the intent required to support a conviction…
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State v. Sapp, 492 So. 2d 703 (Fla. 2d DCA 1986)…property and that the party from whom the property was obtained suffered a corresponding detriment. There must be evidence establishing proof of intent to deprive another person of a right to or benefit from the property involved. Council v. State, 443 So. 2d 440 (Fla. 3d DCA 1984). The state failed to present the necessary evidence to sustain a finding of guilt pursuant to section 812.014 in this case. There is no question that during the period alleged in the indictment, January 1, 1983 to April 1, 1984, t…
Authorities Cited (11 total)
- State v. Allen, 362 So. 2d 10 (Fla. 1978)
- Fisk v. State, 138 Fla. 815 (Fla. 1939)
- E. Y. v. State, 390 So. 2d 776 (Fla. 3d DCA 1980)
- Newberry v. State, 442 So. 2d 334 (Fla. 5th DCA 1983)
- Woodward v. Edwards, 249 So. 2d 16 (Fla. 1971)
- State v. Smith, 249 So. 2d 16 (Fla. 1971)
- A. R. v. State, 393 So. 2d 1174 (Fla. 3d DCA 1981)
- Myers v. State, 115 Fla. 627 (Fla. 1934)
- Spurlock v. State, 281 So. 2d 586 (Fla. 4th DCA 1973)
- Wright v. State, 351 So. 2d 1127 (Fla. 1st DCA 1977)