FRED RUSSELL, APPELLANT,
v.
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.
Fred Russell was convicted of two counts of grand larceny for stealing diamonds and jewelry from the same person at the same time and place. The appellate court affirmed the conviction but remanded for resentencing as a single offense, following the principle that multiple thefts under identical circumstances constitute one crime.
Although the evidence supports conviction on both counts, the offense constitutes a single grand larceny rather than two separate offenses. The case is affirmed but remanded to the trial court to impose judgment and sentence for a single grand larceny offense in accordance with the principle established in Hearn v. State.
“The testimony clearly shows that the theft of the articles was from the same person, at the same time, from the same place, and under the same circumstances, with the same intent.”
Establishes the factual basis for finding that the larcenies constituted a single offense rather than two separate crimes.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn May 23, 1956, appellant Russell stole unset polished diamonds valued at $90,000 belonging to Baumgold Brothers, Inc., and diamond mounted gold and …
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.
An information containing two counts charged appellant with the offense of grand larceny. He was convicted as charged and sentenced to serve a term of five years on each count, the sentences to operate concurrently.
Count one charged that appellant on May 23, 1956, committed larceny of certain unset polished diamonds of the value of $90,000. These were the property of Baumgold Brothers, Inc., a New York corporation, but were in the custody of Herman Berg. The second count charged that, at the same time, appellant committed larceny of diamond mounted gold and platinum rings of the value of $60,000, property of Herman Berg.
The evidence amply establishes the commission of the crime of grand larceny as charged under the two counts, the articles at the time having been taken from the possession of Herman Berg in the lobby of the Fort Harrison Hotel in Clear-water, Florida. It establishes that the articles described in the two counts belonged to Baumgold Brothers, Inc., but that at the time of the larceny they were in the custody of its salesman, Herman Berg. The testimony clearly shows that the theft of the articles was from the same person, at the same time, from the same place, and under the same circumstances, with the same intent.
Appellant challenges the propriety of charging this larceny as two separate offenses, alleging that it merely constituted one offense. He relies upon the principle announced in the case of Hearn v. State, Fla.1951, 55 So.2d 559, 28 A.L.R.2d 1179. In that case the Supreme Court of Florida determined that where defendants committed larceny of nine cows and two calves belonging to different owners at the same time, from the same place, and under the same circumstances with the same intent, the offense was a single larceny.
The state concedes the applicability of the Hearn case but insists that the remedy is that the case should be remanded as a single offense for adjudication and sentencing. Although appellant seeks reversal and new trial, on page 28 of his brief he states that, in the event the verdicts are not set aside and the case remanded, the judgments and sentences should be vacated and judgment and sentence entered for a single offense.
The factual situation forming the basis of the verdicts is the same as to both counts, the only distinction being that the stolen articles described in one count were in one brief case while those described in the other count were in a separate brief case. There was just the single trial. The case was fairly tried by an able and experienced judge. The sentences imposed, although for two offenses, are for the same term and are to run concurrently.
The other points raised by appellant are without merit. The cause is affirmed and remanded to the trial court with directions to impose and enter a judgment and sentence for the single offense of grand larceny in accordance with this opinion.
ALLEN and SHANNON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Drakes v. State, 400 So. 2d 487 (Fla. 5th DCA 1981)…d place as one continuous act or transaction is a single theft offense. Hearn v. State, 55 So. 2d 559, 28 A.L.R.2d 1179 (Fla.1951); Hill v. State, 293 So. 2d 79 (Fla.3d DCA 1974); Avilia v. State, 278 So. 2d 298 (Fla.4th DCA 1973); Russell v. State, 107 So. 2d 801 (Fla.2d DCA 1958). However, appellant failed to timely present his double jeopardy defense by motion to dismiss the information, as required by Florida Rule of Criminal Procedure 3.190(b), and it was waived. Chapman v. State, 389 So. 2d 1065 (Fla.5t…
-
Watts v. State, 440 So. 2d 505 (Fla. 1st DCA 1983)…s, were gathered in Judge Cowart’s opinion for the court in Drakes v. State, 400 So. 2d 487 (Fla. 5th DCA 1981). They include Hill v. State, 293 So. 2d 79 (Fla. 3d DCA 1974); Avilia v. State, 278 So. 2d 298 (Fla. 4th DCA 1973), and Russell v. State, 107 So. 2d 801 (Fla. 2d DCA 1958). In Hill the court agreed with appellant’s contention that two robbery counts “charged only a single offense” and that “one of the counts must be reversed,” although two victims were simultaneously put in fear in the supermarket h…
-
Avilia v. State, 278 So. 2d 298 (Fla. 4th DCA 1973)…receiving stolen property. Though the property was owned by different entities, the offense was by the same person, at the same time, in the same place, under the same circumstances and [*299] with the same intent. (Russell v. State, Fla.App. 1958, 107 So. 2d 801.) There is no reversible error in the ultimate result of the action by the trial judge, but since there is only one offense there can be only one adjudication and one sentence. This cause is affirmed and remanded to the trial court with directions…
Authorities Cited
- Hearn v. State, 55 So.2d 559 (Fla. 1951)