ERNEST OLIN COX, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court affirmed a conviction for breaking and entering a dwelling with intent to commit a felony and petit larceny, rejecting the appellant's claim that his sentence was excessive because the offense was a misdemeanor.
No, the sentence was not excessive. The conviction for breaking and entering a dwelling with intent to commit a felony, even with goods valued under $100, constitutes a felony when imprisonment is in the state penitentiary, and the sentence was within the statutory limit.
“The conviction under Count I carried a maximum penalty of five years in the State penitentiary [because the value of the goods taken was established at less than $100.00].”
Establishes the statutory basis for the conviction and sentence.
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Join FLexlaw to unlock all legal intelligenceThe appellant was charged with breaking and entering a dwelling with intent to commit a felony and grand larceny. After a non-jury trial, he was convi…
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The appellant was informed against in a two-count information. Under Count I, he was charged with breaking and entering a dwelling with intent to commit a felony. Under Count II, he was charged with grand larceny. Following a non-jury trial, he was convicted of the charge under Count I, and convicted of the lesser included offense of petit larceny under Count II, and sentenced to two years in the State penitentiary.
On this appeal, the appellant contends that his sentence was excessive; that he was convicted of no more than a misdemeanor. The conviction under Count I carried a maximum penalty of five years in the State penitentiary [because the value of the goods taken was established at less than $100.00]. See: § 810.05 Fla.Stat., F.S.A. The imprisonment being in the State prison, it was a felony. See: § 775.-08 Fla.Stat., F.S.A. The sentence being within the limit set by the statute, no error has been demonstrated in this regard nor in the other contentions raised by the appellant.
Therefore, the action of the trial judge here under review is hereby affirmed.
Affirmed.
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Calloway Brown v. State, 232 So. 2d 55 (Fla. 4th DCA 1970)…ight also have been authorized as an alternative. Cf. State v. Fitz, Fla.1967, 202 So. 2d 841 and Chapman v. Lake, 1933, 112 Fla. 746, 151 So. 399, 402. See also Tidwell v. Circuit Court, 1942, 151 Fla. 333, 9 So. 2d 630; Cox v. State, Fla.App.1966, 190 So. 2d 823; and Griffin v. State, Fla.App.1969, 217 So. 2d 893. Under F.S. Section 810.05, F.S.A., breaking and entering with the intent to commit a misdemeanor is a crime for which a convicted person may be imprisoned in the state prison and, therefore, is a…1 / 2
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Boyer v. State, 237 So. 2d 827 (Fla. 1st DCA 1970)…efs and the record on appeal having been read and given full consideration, and the appellant having failed to demonstrate reversible error, the order of the lower court is affirmed. See Brown v. State, 232 So. 2d 55 (Fla.App.1970) and Cox v. State, 190 So. 2d 823 (Fla.App.1966). JOHNSON, C. J., and CARROLL, DONALD K., and RAWLS, JJ., concur.…