ERNEST MCFALL THOMPSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ernest Thompson was convicted of breaking and entering with intent to commit grand larceny in two separate incidents. The appellate court reversed in part, finding insufficient evidence of intent to commit grand larceny but affirming the lesser included offense of breaking and entering with intent to commit petit larceny.
The state's evidence was insufficient to prove Thompson entertained intent to commit grand larceny at the time of the break-ins. However, ample evidence established the offense of breaking and entering with intent to commit petit larceny, a lesser included offense.
“the state's only evidence in support of the charge that defendant intended to commit grand larceny was testimony that the dwelling contained property valued at more than One Hundred Dollars”
Establishes the insufficiency of the state's evidence regarding intent to commit grand larceny
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Join FLexlaw to unlock all legal intelligenceThompson was charged in two consolidated cases for breaking and entering a dwelling with intent to commit grand larceny on October 13 and October 16, …
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The appellant herein was the defendant in two separate cases which were consolidated for trial. In case No. 66-7740, defendant was charged with the crime of breaking and entering a dwelling with intent to commit a felony, to-wit: grand larceny, the offense allegedly having been *693committed on October 16, 1966. In case No. 66-7741, he was charged in a two count information with (1) breaking and entering a dwelling with intent to commit a felony, to-wit: grand larceny, and (2) petit larceny in violation of § 811.021, Fla.Stat., F.S.A., which offense it was alleged occurred on October 13, 1966, at the same location as the breaking and entering previously charged.
Defendant entered a plea of not guilty and waived trial by jury. After trial, he was found guilty as charged, so adjudicated, and sentenced to cumulative sentences of five years in case No. 66-7740 and two years in case No. 66-7741.
Appellant’s only meritorious point on appeal is that the state failed to establish a prima facie case of breaking and entering with intent to commit a felony, to-wit: grand larceny. The state’s only evidence in support of the charge that defendant intended to commit grand larceny was testimony that the dwelling contained property valued at more than One Hundred Dollars. The defendant admitted having taken from the house a purse containing Fourteen Dollars; but, he asserted that he never intended to take more than Thirty Dollars, which sum he maintained was owed to him. He also steadfastly maintained that the sole purpose of the second intrusion was to retrieve the balance of the Thirty Dollars. Defendant was arrested while inside the dwelling upon the second occasion.
We find the state’s evidence insufficient to prove that the appellant entertained an intent to commit grand larceny at the time he broke into and entered the dwelling. There is, however, ample proof to establish the offense of breaking and entering with intent to commit petit larceny. Therefore, we affirm the convictions of breaking and entering and petit larceny, but the judgments and sentences will be set aside and the causes remanded with directions to the trial court to enter judgment holding the defendant guilty of the lesser included offenses (i. e., breaking and entering with intent to commit a misdemeanor, to-wit: petit larceny) and to impose sentences 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Eaton v. State, 307 So. 2d 915 (Fla. 3d DCA 1975)…t, apprehended after having left a residence, was found to have taken property which was not shown to be of value sufficient for grand larceny, in Guerrero v. State, Fla.1974, 289 So. 2d 396. See also to like effect, Thompson v. State, Fla.App.1968, 207 So. 2d 692, cited in State v. West, supra. Appellants’ reliance on cases of that type is misplaced. In this case the appellants were apprehended within the building, and prior to having taken or having had opportunity to steal and take away such property as i…
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West v. State, 289 So. 2d 758 (Fla. 3d DCA 1974)…hat where the state’s only evidence of an intent to commit grand larceny in a case of this nature is that a dwelling house contained property valued in excess of $100, such evidence is not sufficient to prove intent. Thompson v. State, Fla.App.1968, 207 So. 2d 692. In the instant case, the evidence shows that appellant was caught with two keys to the Buccaneer Lodge in his possession. We have determined from the record that the evidence was sufficient to prove only a breaking and entering with intent to commi…
Authorities Cited
- Airlift Int'l, Inc. v. Carr, 187 So. 2d 908 (Fla. 3d DCA 1966)
- Hoyle E. Turknett v. State, 116 Fla. 562 (Fla. 1934)
- Williams v. State, 101 So. 2d 877 (Fla. 1st DCA 1958)
- Bronson v. State, 152 Fla. 28 (Fla. 1942)
- Atl. Food Supply Co. v. Massey, 152 Fla. 43 (Fla. 1942)
- Daiger v. Daiger, 116 Fla. 562 (Fla. 1934)
- Morrow v. State, 185 So. 2d 200 (Fla. 3d DCA 1966)