THEODORE ALBERT BONAMY AND BOBBY JOE DAVIS, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court affirmed a conviction for possession of burglary tools but reversed a conviction for breaking and entering with intent to commit grand larceny due to a fatal variance between the charge and the evidence presented.
Yes, there was a fatal variance regarding the breaking and entering charge because the evidence did not prove the specific intent to commit grand larceny. However, the evidence was sufficient to support the conviction for possession of burglary tools.
“there is a fatal variance between the information and the proof necessary to sustain a conviction under Count I, in that the information charged breaking and entering with the specific intent to commit the felony of grand larceny, and that the evidence failed to prove this charge.”
Establishes the reason for reversing the breaking and entering conviction.
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Join FLexlaw to unlock all legal intelligenceAppellants were convicted in a non-jury trial of breaking and entering a building with intent to commit grand larceny and possession of burglary tools…
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The appellants were found guilty, after a non-jury trial, under an information which charged them under Count I with breaking and entering a building with intent to commit a felony, to-wit: grand larceny, -and under Count II of the “possession of burglary tools” in violation of Section 810.06, Florida Statutes, F.S.A.
After a careful review of the briefs and record we find that there is a fatal variance between the information and the proof necessary to sustain a conviction under Count I, in that the information charged breaking and entering with the specific intent to commit the felony of grand larceny, and that the evidence failed to prove this charge.
The evidence failed to show that any actual grand larceny was committed, or that the appellants had any specific intent to commit grand larceny, or what items, or goods, of value, if any, were within the confines of the building.
The record, however, does contain sufficient competent evidence to affirm the *708conviction and judgment that the appellants were guilty of the crime of having in their possession certain “burglary tools,” in violation of Section 810.06, Florida Statutes, F. S.A.
The judgment of the trial court is therefore affirmed insofar as the crime of possession of burglary tools, and is reversed on the allegations that the appellants were guilty of breaking and entering a building with intent to commit a felony, to-wit: grand larceny.
The cause is hereby remanded to the trial judge for the imposition of such sentence as he shall deem fit and proper under the circumstances for violation of Section 810.06, Florida Statutes, F.S.A.
It is so ordered.
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State v. Waters, 436 So. 2d 66 (Fla. 1983)…ate, 36 Fla. 691, 18 So. 369 (1895); Jackson v. State, 300 So. 2d 47 (Fla. 3d DCA 1974), cert. denied, 312 So. 2d 753 (Fla.1975); Turner v. State, 267 So. 2d 882 (Fla. 2d DCA 1972); Dobry v. State, 211 So. 2d 603 (Fla. 3d DCA 1968); Bonamy v. State, 205 So. 2d 707 (Fla. 3d DCA 1968); Groneau v. State, 201 So. 2d 599 (Fla. 4th DCA), cert. denied, 207 So. 2d 452 (Fla.1967). Although there may be exceptions where the statutory language is so generic [*69] that an accusation in the language of the statute would…1 / 2