ELSIE HURSEY JOHNSON A/K/A ELSIE TOWNSEND, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Elsie Hursey Johnson was convicted of breaking and entering a dwelling with intent to commit felony larceny and grand larceny. The Florida appellate court affirmed the grand larceny conviction but reversed the breaking and entering conviction, finding the vacant premises constituted a building rather than a dwelling, thereby reducing the offense to a lesser statutory violation.
The court affirmed the grand larceny conviction, finding that the custodial interest of the real estate broker satisfied the ownership requirement, and found the photograph evidence admissible. However, the court reversed the breaking and entering conviction, holding that a vacant building being rented does not constitute a dwelling within the meaning of the statute, and the offense was reduced to the lesser offense of breaking and entering a building under a different statutory provision.
“The requirement for alleging ownership on a charge of larceny was complied with by alleging the custodial interest of the real estate broker, Pangia, where the titleholder was absent and not then in actual possession.”
Establishes that custodial interest can satisfy the ownership requirement for larceny charges when the titleholder is absent and not in possession.
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with breaking and entering a dwelling house with intent to commit felony larceny, grand larceny of property valued over $100 bel…
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By an information filed in Dade County the appellant Elsie Hursey Johnson was charged in one count with breaking and entering a dwelling house with intent to commit a felony, grand larceny, and in a second count with larceny of personal property “of one Frank V. Pangia, as custodian” of the value of more than $100. A third count charged concealment of stolen property. Appellant was tried and found guilty of the charges set forth in counts one and two, and sentenced to confinement for a period of ten years.
On this appeal therefrom appellant makes three contentions. First she contends the trial court erred in denying her motion for directed verdict on the ground that the custodial status of the property in Frank V. Pangia as alleged was not established, and that ownership was not proved. A second contention is that error was committed b}'a ruling of the trial court admitting in evidence certain photographs of the alleged stolen property over objection of defendant. Third, it is contended the evidence presented by the state in support of count one, which charged breaking and entering a dwelling, disclosed a building other than a dwelling.
The requirement for alleging ownership on a charge of larceny was complied with by alleging the custodial interest of the real estate broker, Pangia, where the titleholder was absent and not then in actual possession. Harper v. State, Fla.App.1964, 169 So.2d 512. The custodial status of the broker with reference to the property involved was sufficiently shown. The judgment, therefore, will be affirmed as to count two which dealt with grand larceny. Appellant’s second contention, relating to introduction into evidence of photographs of the alleged stolen property has been considered and is found to be without merit.
However, we find appellant’s contention that the proof offered in support of count one showed a building rather than a dwelling is meritorious. Although the premises involved was a residence, it was vacant and had been put up for rent, and was not being used or occupied as a dwelling at the time involved. Therefore, the breaking and entering of which the defendant was found guilty was not of a dwelling (in violation of § 810.01, Fla.Stat, F.S.A.) but of a building, in violation of § 810.02, a lesser offense. See Johnson v. State, Fla. *603App.1966, 188 So.2d 61. As was done in a similar circumstance in the case just cited, we reverse the judgment of conviction on count one and the sentence, and remand the cause with direction to enter a judgment which (in addition to adjudging the defendant guilty of grand larceny on count two) will adjudge the defendant guilty on count one of the lesser offense (under § 810.02 Fla.Stat., F.S.A.) relating to breaking and entering a building with intent to commit grand larceny; and that a sentence then be entered accordingly.
Affirmed in part and reversed m part, and remanded with directions.
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Tukes v. State, 346 So. 2d 1056 (Fla. 1st DCA 1977)…subject of burglary, and may be described as such, whether they are occupied or not.’ ” 85 So. at 912. To the same effect see Henderson v. State, 80 Fla. 491, 86 So. 439 (1920); Johnson v. State, 188 So. 2d 61 (Fla. 3rd DCA 1966); Johnson v. State, 190 So. 2d 601 (Fla. 3rd DCA 1966). In the latter two cases the Third District Court of Appeal remanded cases to the trial court with directions to enter judgments for lesser offenses under Section 810.02. This cause is remanded to the trial court with directions…
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Simkovitz v. State, 340 So. 2d 959 (Fla. 3d DCA 1976)…DCA 1966). We believe, however, that by alleging and proving the custodial interest of Jordan Marsh, Inc., the State adequately fulfilled its requirement of establishing ownership or superior possession in one other than the thief. Johnson v. State, 190 So. 2d 601 (Fla. 3d DCA 1966). As such, we hold that the trial court correctly denied petitioner Leon’s motion for judgment of acquittal and the circuit court rightly affirmed his conviction. We have considered the record, all points in the briefs and argumen…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harper v. State, 169 So. 2d 512 (Fla. 2d DCA 1964)
- Johnson v. State, 188 So. 2d 61 (Fla. 3d DCA 1966)