BEN ARTHUR SMITH, APPELLANT,
v.
THE 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.
The court held that evidence of driving a getaway car, without more, is insufficient to prove aiding and abetting a burglary or robbery.
The victim was robbed after noticing a suspicious car driven by the defendant. The defendant was identified as the driver, and the passenger committed…
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 Accessory After The Fact cases and more on FLexlaw
PER CURIAM.
The defendant appeals an order revoking probation and imposing a sentence for imprisonment on a finding that he committed the offenses of burglary and robbery.
Marie Buffone, the victim, testified that as she returned home from a shopping trip she noticed a car behind her; and that she parked in her yard but remained in the car until the vehicle behind passed. The suspicious vehicle, driven by the defendant, continued to the corner and made a left turn out of her sight. . It was only then that she got out of her car and started up the walkway to enter the house. As she walked up her driveway the man who was a passenger in the passing automobile ran up behind her and, after a brief struggle, took her purse and absconded. Both suspects were apprehended after a chase by police officers. The defendant was positively identified as the driver. The defendant contends in this appeal that the evidence was legally insufficient to prove that he was an aider and abettor to the crime of burglary or robbery, relying mainly on A.Y.G. v. State, 414 So. 2d 1158 (Fla. 3d DCA 1982), where we held that evidence that the defendant drove the getaway car from the scene of the burglary at the burglar’s request, without more, was insufficient to convict as an aider and abettor. We agree.
A defendant cannot be convicted of a charged substantive offense based on evidence which proves involvement only as an accessory after the fact. Jackson v. State, 436 So. 2d 1085 (Fla. 3d DCA 1983); A.Y.G. v. State. Likewise probation cannot be revoked where the proof supports only an offense other than the one charged. Brown v. State, 468 So. 2d 439 (Fla. 2d DCA 1985). Nothing in the record excludes the reasonable inference that the defendant had no knowledge of the robbery until after it occurred.1
Reversed and remanded.
. There is no double jeopardy bar to the state filing a new affidavit of probation violation based on the lesser offense,
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Harrington v. State, 570 So. 2d 1140 (Fla. 4th DCA 1990)…r used; that the boyfriend smoked cocaine at home; or that the boyfriend smoked cocaine in her presence. Because “nothing in the record excludes the reasonable inference” that Harrington’s boyfriend did not smoke cocaine at home, see Smith v. State, 502 So. 2d 77 (Fla. 3d DCA 1987), the evidence is legally insufficient to prove that Harrington violated her probation by visiting places where intoxicants were sold or used. In summary, the trial court did not make an express oral finding that Harrington used c…
-
Morse v. State, 604 So. 2d 496 (Fla. 1st DCA 1992)…lation. For that reason, the violation cannot be sustained based on proof of a violation that was not charged. See Harrington v. State, 570 So. 2d 1140, 1142 (Fla. 4th DCA1990); Moser v. State, 523 So. 2d 783, 785 (Fla. 5th DCA1988); Smith v. State, 502 So. 2d 77 (Fla. 3d DCA1987). Accordingly, as a result of the reversal of the burglary conviction, the orders finding appellant in violation of community control and probation, and the sentences based on that violation, are vacated, and the cause is remanded…
-
Garcia v. State, 679 So. 2d 307 (Fla. 3d DCA 1996)…PER CURIAM. Affirmed. Smith v. State, 502 So. 2d 77 (Fla. 3d DCA 1987); Green v. State, 450 So. 2d 509 (Fla. 3d DCA 1984), app’d, 463 So. 2d 1139 (Fla.1985); State v. Jones, 425 So. 2d 178 (Fla. 1st DCA 1983); Tuff v. State, 338 So. 2d 1335 (Fla. 2d DCA 1976).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- A. Y. G. v. State, 414 So. 2d 1158 (Fla. 3d DCA 1982)
- Jackson v. State, 436 So. 2d 1085 (Fla. 3d DCA 1983)
- Brown v. State, 468 So. 2d 439 (Fla. 2d DCA 1985)