WILLIAM H. MOENING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1993-03-12
No. 91-2732
W. SHARP and HARRIS, JJ., concur.
615 So. 2d 791 Florida District Court of Appeal, Fifth District (1993) Positive Treatment
Cited by 4 cases
Topics
Third Degree Felony Theft Departure Sentence

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Opinion of the Court
COBB, Judge.

COBB, Judge.

In the instant case, the evidence at trial failed to establish that the appellant, William Moening, who was charged with second degree grand theft, had stolen in excess of $20,000.00; rather, the evidence supported a conviction for the theft of some $16,800.00. Moreover, the trial court’s use of the grounds of “premeditation or calculation” for purposes of a departure sentence was improper since it is inherent in the crime of theft that a defendant intends — i.e., calculates and premeditates — to convert the property of another to his own use. See State v. Obojes, 604 So. 2d 474 (Fla.1992).

Accordingly, the judgment and sentence of the trial court are reversed and this cause is remanded for entry of a judgment of guilt to a third degree felony and imposition of an appropriate sentence therefor. REVERSED AND REMANDED.

W. SHARP and HARRIS, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

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Cited By

  • Taccariello v. State, 664 So. 2d 1118 (Fla. 4th DCA 1995)
    …d. State v. Mischler, 488 So. 2d 523 (Fla.1986); Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Similarly, we hold that premeditation is inherent in the crime of theft and is also an invalid reason for departure in the instant case. Moening v. State, 615 So. 2d 791 (Fla. 5th DCA 1993). [*1122] Finally, we address appellant’s contention that her convictions of both grand theft and fraud violate double jeopardy prohibitions. We find that, having entered a guilty plea without making an express reservation of the…
  • Moening v. State, 643 So. 2d 1201 (Fla. 5th DCA 1994)
    …(“DOC”). He was also required to pay $16,800 of restitution. This court reversed the judgment and sentence and remanded for “entry of a judgment of guilt to a third degree felony and imposition of an appropriate sentence therefor.” Moening v. State, 615 So. 2d 791, 792 (Fla. 5th DCA 1993). At resentencing, Moening was sentenced to serve a five year term of probation. Moening was not given credit for time served while awaiting sentencing or time served in the DOC. As to this point, the state concedes error. Th…

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