GARY EUGENE MORROW, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gary Eugene Morrow appealed his convictions for uttering a forged instrument, breaking and entering with intent to commit a felony, and petit larceny. The appellate court affirmed the forgery conviction and the breaking and entering conviction, but reduced the breaking and entering charge to one without felonious intent and vacated both sentences for resentencing.
The court affirmed the conviction for uttering a forged instrument and affirmed the breaking and entering conviction, but reduced it to breaking and entering with intent to commit a misdemeanor rather than a felony because the State failed to prove felonious intent. The court also found no error in the petit larceny conviction as a lesser included offense.
“We affirm the conviction of breaking and entering, but it appears that the State failed to sufficiently prove intent to commit a felony and the record will only support a conviction of breaking and entering with intent to commit a misdemeanor.”
Establishes that while breaking and entering was proven, the State did not meet its burden on the felonious intent element.
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Join FLexlaw to unlock all legal intelligenceMorrow was convicted of uttering a forged instrument, unlawfully breaking and entering a building with intent to commit a felony (grand larceny and pe…
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The appellant was informed against and found guilty of uttering a forged instrument, and unlawfully breaking and entering a building with intent to commit a felony, to wit: grand larceny and petit larceny. Upon this appeal, the appellant urges the insufficiency of the evidence to support the convictions.
We find the evidence sufficient to support the charge of uttering a forged instrument and, therefore, this conviction and sentence is affirmed. See: Di Bona v. State, Fla.App.1960, 121 So.2d 192; Hicks v. State, Fla.App.1962, 138 So.2d 101; Crum v. State, Fla.App.1965, 172 So.2d 24.
We affirm the conviction of breaking and entering, but it appears that the State failed to sufficiently prove intent to commit a felony and the record will only support a conviction of breaking and entering with intent to commit a misdemean- or.
^ Therefore, this conviction will be sustained, but the sentence will be set aside and the matter returned to the trial court for proper sentencing in accordance with Escobar v. State, Fla.App.1965, 181 So.2d 193.
As to the conviction of petit larceny, this is a misdemeanor and ordinarily would be reviewable in the circuit court. See: Art. V, § 6(3), Fla.Const., F.S.A. However, the trial judge had the power, under the information charging grand larceny, to make such adjudication as this is a lesser included offense. The appellant points out that the title of the information charged “Petit Larceny”. However, the body of the information clearly charged a felony by alleging the felonious taking of personal property of a value in excess of $100.00 [see: § 811.021 Fla.Stat., F. S.A.] and the court, sitting as the trier of fact, announced that it found the appellant guilty as charged. We find no error in the finding of guilt. But, as it appears that this sentence was joined with that of the breaking and entering with intent to commit a felony, which we have hereinabove set aside, we likewise vacate this sentence 1 and return the matter to the trial court for an appropriate sentence in accordance with the statutes of this State as made and provided for petit larceny.
Therefore, for the reasons above stated, this matter is returned to the trial court for further proceedings in accordance with the above.
Affirmed in part; reversed in part, with directions.
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Citator
Cited By
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Thompson v. State, 207 So. 2d 692 (Fla. 3d DCA 1968)…nces therefor as provided by law. See: § 924.34, Fla.Stat., F.S.A.; Bronson v. State, 152 Fla. 28, 10 So. 2d 718 (1942); Turnnett v. State, 116 Fla. 562, 156 So. 538 (1934); Todd v. State, Fla.App.1966, 187 So. 2d 908; Morrow v. State, Fla.App.1966, 185 So. 2d 200; and Williams v. State, Fla.App.1958, 101 So. 2d 877. Reversed and remanded.…
Authorities Cited
- Crum v. State, 172 So. 2d 24 (Fla. 3d DCA 1965)
- Guido DI Bona v. State, 121 So. 2d 192 (Fla. 2d DCA 1960)
- Escobar v. State, 181 So. 2d 193 (Fla. 3d DCA 1965)
- Durrell Hicks v. State, 138 So. 2d 101 (Fla. 2d DCA 1962)