DONALD ERWIN BIESENDORFER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Biesendorfer was convicted of receiving stolen property valued under $100. The Florida appellate court reversed and remanded because the judgment was defective, omitting material elements of the offense as charged in the information, and remanded for entry of a proper judgment.
The judgment was defective because it omitted the material element that the defendant knew the property was stolen at the time of receiving it, as required by the information. The defendant was not entitled to alternative sentencing under Section 811.17 because the stolen property came from a burglary, making that sentencing provision inapplicable.
“The judgment is defective in omitting a material element of the offense as charged and must he reversed and this cause remanded for entry of a proper and lawful judgment.”
The court's holding that the judgment must be reversed due to the omission of the material element of knowledge that the property was stolen.
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Join FLexlaw to unlock all legal intelligenceBiesendorfer was convicted by jury of receiving stolen property under $100 in value. The property at issue had been stolen in a burglary. Biesendorfer…
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Appellant was convicted in the Court of Record in and for Broward County of the criminal offense of receiving stolen property under F.S.1967, Section 811.16, F.S.A., and appeals from the judgment entered thereon.
The jury verdict found the defendant “guilty of the lesser included offense of receiving stolen property under the value of ONE HUNDRED ($100.00) DOLLARS.” This verdict was defective, Myers v. State, 1934, 115 Fla. 627, 155 So. 797; Harris v. State, 1907, 53 Fla. 37, 43 So. 311, but was never attacked by a proper motion in arrest of judgment. There is thus no judicial act to be reviewed by us in connection with this point.
The judgment which the court entered likewise adjudged appellant guilty of the crime of receiving stolen property under the value of ONE HUNDRED ($100.-00) DOLLARS. The information charged appellant in the language of F.S.1967, Section 811.16, F.S.A., including the material element that at the time of receiving or *323aiding in the concealment of said stolen property, appellant then and there well knew that the same was stolen property. The judgment is defective in omitting a material element of the offense as charged and must he reversed and this cause remanded for entry of a proper and lawful judgment. Mathis v. State, 1938, 134 Fla. 352, 184 So. 89; Perkins v. State, 1936, 126 Fla. 707, 171 So. 655.
Appellant, sentenced to the maximum penalty prescribed by F.S.1967, Section 811.16, F.S.A., asserts that since he is a first offender and since the property was returned to its lawful owner (with the exception of that retained by the state for use in evidence), he was entitled to be sentenced under the provisions of F.S. 1967, Section 811.17, F.S.A. Without determining the issue of whether appellant had made full restitution or the property sufficiently returned to the lawful owner, we find that it affirmatively appears the goods had been stolen in a burglary, thus making F.S.1967, Section 811.17, F.S.A., inapplicable. Flowers v. State, Fla.App. 1969, 222 So.2d 786.
The other points argued by appellant have been considered but they are likewise without merit and do not require comment.
The judgment is reversed and the sentence entered thereon is vacated and this cause remanded to the trial court with directions that a proper and lawful judgment be entered herein, and the appellant be sentenced as the justice of the cause shall require. Appellant’s testimony in his own behalf, if true, indicates that the trial court may be justified in considering the desirability of a presentence investigation.
Reversed, and remanded.
WALDEN and REED, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Spurlock v. State, 281 So. 2d 586 (Fla. 4th DCA 1973)…e failed to move for a new trial, and never attacked the verdict by a proper motion in arrest of judgment so that there is no reviewable judicial act; ergo, there is no merit to defendant’s first point on appeal. Biesendorfer v. State, Fla.App.1969, 227 So. 2d 322. There is merit to defendant’s second appellate point, which challenges the failure of the judgment to recite knowledge on defendant’s part. We reverse and remand on authority of Biesendorfer v. State, supra; Eagle v. State, Fla.App.1972, 270 So. 2…
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Eagle v. State, 270 So. 2d 468 (Fla. 4th DCA 1972)…ed to recite that appellant received the property with knowledge of its stolen character. Such a judgment is defective in omitting a material element of the offense as charged. Mathis v. State, 134 Fla. 352, 184 So. 89 (1938); Biesendorfer v. State, 227 So. 2d 322 (Fla.App.1969). Accordingly, the judgment is reversed and the sentence is vacated and set aside, and the cause remanded for entry of judgment consistent with the views herein expressed and imposition of sentence as the justice of the cause shall re…
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State v. Biesendorfer, 244 So. 2d 147 (Fla. 4th DCA 1971)…DRIVER, B. J., Associate Judge. This is the second appeal to this Court growing out of appellee Biesendorfer’s conviction under F.S.1967, 811.16, F.S.A., of the crime of receiving stolen property. Biesendorfer v. State (Fla.App. 1969), 227 So. 2d 322, was the first appeal. That appeal, brought by Biesendorfer, sought to have vacated and set aside the jury verdict, judgment of conviction and sentence. This court affirmed the jury verdict but did, however, vacate the judgment and sentence, reverse…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harris v. State, 53 Fla. 37 (Fla. 1907)
- Myers v. State, 115 Fla. 627 (Fla. 1934)
- Afalia Perkins v. State, 126 Fla. 707 (Fla. 1936)
- Mathis v. State, 134 Fla. 352 (Fla. 1938)
- Flowers v. State, 222 So. 2d 786 (Fla. 2d DCA 1969)