MACK CLINTON ISAAC, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Isaac was convicted of breaking and entering a storehouse with intent to commit a misdemeanor (petit larceny), having been charged with the felony version. He appealed arguing insufficient evidence of breaking. The appellate court affirmed, holding that breaking and entering with intent to commit a misdemeanor and entering without breaking with intent to commit a misdemeanor are not distinct offenses but merely different ways of stating the same crime under Florida Statute 810.05, making proof of breaking immaterial.
The court held that breaking and entering with intent to commit a misdemeanor and entering without breaking with intent to commit a misdemeanor are not separate offenses or different degrees of the same crime, but merely different ways of stating the same crime. Therefore, proof of breaking is immaterial, and the sufficiency of evidence regarding breaking need not be determined.
“A charge of breaking and entering with intent to commit a felony necessarily includes as a lesser offense a violation of Section 810.05, Florida Statutes, F.S.A.”
Establishes the legal relationship between the charged felony and the misdemeanor conviction
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Join FLexlaw to unlock all legal intelligenceIsaac was charged with breaking and entering a storehouse with intent to commit grand larceny (a felony). At trial, the jury found him guilty of break…
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The appellant (defendant) was charged with the crime of breaking and entering a store house with intent to commit a felony, to-wit: Grand Larceny. After trial, the jury returned a verdict of guilty of breaking and entering a store house with intent to commit a misdemeanor, to-wit: Petty Larceny. The court entered judgment and sentenced him to serve a term of five years in the state prison. The defendant appealed, contending that there was no evidence to establish any breaking on the part of the defendant. For the reasons hereinafter noted, it is unnecessary for us to decide this question.
The crimes set forth in Chapter 810, Florida Statutes, F.S.A., although not all burglary under the common law, have been considered for many years as a species of burglary. State ex rel. Interlandi v. Pette-way, 1934, 114 Fla. 850, 155 So. 319.
A charge of breaking and entering with intent to commit a felony necessarily includes as a lesser offense a violation of Section 810.05, Florida Statutes, F.S.A. Jalbert v. State, Fla.1957, 95 So.2d 589.
Section 810.05, Florida Statutes, F.S.A., provides that:
“Whoever breaks and enters or enters without breaking any * * * store house * * * with intent to commit a misdemeanor, shall be punished by imprisonment in the state prison or county jail not exceeding five years, or by fine not exceeding five hundred dollars.”
If breaking and entering with intent to commit a misdemeanor is a different degree of crime or a lesser offense than entering without breaking with intent to commit a misdemeanor, it would then become necessary to determine the sufficiency of the evidence to establish any breaking on the part of the defendant.
The term “degree of crime” is defined in 22 C.J.S. Criminal Law, § 5, p. 12, as denoting a particular grade of crime more or less culpable than another grade of the same offense. The degrees are distinguished, not by a difference in the particular act performed, but by the circumstances surrounding it or the conditions under which it occurs. The character of .the offense is determined by the nature of the punishment; the maximum punishment to which accused is liable to be subjected is the test by which the degree of the crime must be determined. To be included in a greater offense as a lesser offense, an act must be one that is itself defined by statute as an offense independent of, and apart from, that defined as the greater offense in which it may be included.
Applying these criteria to the statute in question, we determine that there is no degree of crime and neither is there a greater or lesser offense within the provisions of Section 810.05, Florida Statutes, F.S.A., between breaking and entering with intent to commit a misdemeanor, or, entering without breaking with intent to commit a misdemeanor. Neither is an offense independent of, and apart from, that of the other. Both are in the same section of the statutes and both have the same punishment. They, therefore, constitute merely different ways of stating the same crime. Under the circumstances here, it thus becomes immaterial as to whether or not the evidence sustains proof of breaking. The sentence is within the limits of the statute. Hughes v. State, 1923, 86 Fla. 202, 97 So. 478.
Having reviewed the entire record and having found no error, prejudicial or harmful to the defendant, this cause is affirmed.
Affirmed.
ALLEN, Acting C. J., and KANNER, J., concur.
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Roberts v. State, 320 So. 2d 832 (Fla. 2d DCA 1975)…75.084.” Hence, it is not a matter of greater vis-a-vis lesser included offenses in the sense that the lesser is considered to be an independent offense which is' included within the offense defined as greater. See Isaac v. State, Fla.App.2d, 1961, 134 So. 2d 38, overruled in part by Skov. We are concerned here with the same offense which may be committed in two ways. But does this mean that one who is charged with the first alternative under the statute cannot be convicted of committing the crime in the ma…
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Footman v. State, 203 So. 2d 356 (Fla. 2d DCA 1967)…king and entering buildings, other than dwelling houses, with intent to commit a felony. The two statutes with which we are confronted in this case are: F.S. § 810.02 and § 811.021(2), F.S.A. Thus, based on the case of Isaac v. State, Fla.App.1961, 134 So. 2d 38, and the two different chapters of statutes involved, the two counts in the information against appellant represent two separate and distinct crimes for which two sentences could be imposed. Therefore, the lower court is affirmed. Affirmed. LILES,…
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Skov v. State, 292 So. 2d 64 (Fla. 2d DCA 1974)…In its petition for rehearing, the State, for the first time, calls attention to our previous decision of Isaac v. State, Fla. App.2d, 1961, 134 So. 2d 38. The rationale of that case appears to conflict at least in part with our opinion. However, it further appears that Isaac is also in conflict with the earlier opinion of the Supreme Court in Long v. State, supra. Cf. Allison v. Mayo, 1947, 158 Fla.…
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
- Jalbert v. State, 95 So. 2d 589 (Fla. 1957)
- State v. Petteway, 114 Fla. 850 (Fla. 1934)
- Hughes v. State, 86 Fla. 202 (Fla. 1923)