MARVIN L. GILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of obtaining four automobiles by means of a worthless check. He appealed arguing that because he did not take actual physical possession of the vehicles until after reimbursing the auction, the felony charge was not proven. The court affirmed, holding that constructive possession—obtained through bills of sale, titles, and gate releases—satisfies the statutory requirement of "obtaining" property.
The court held that under the circumstances presented, appellant took constructive possession of the automobiles sufficient to have "obtained" them in violation of Fla.Stat. § 832.05(3). The fact that appellant did not choose to take actual physical possession does not negate the crime.
[1] A person obtains property in return for a worthless check when they receive title, bills of sale, and gate releases, even if they do not take immediate physical possessio…
[2] Receiving the right to immediate possession of property, along with the means to remove it, constitutes constructive possession for the purposes of establishing the crime…
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Join FLexlaw to unlock all legal intelligence“appellant had received all rights to immediate possession, i. e., bills of sale, titles, and gate releases. He had the right to remove the automobiles, or take them into his actual possession, at any time.”
Establishes what constitutes constructive possession under the statute
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Join FLexlaw to unlock all legal intelligenceAppellant obtained four automobiles from St. Pete Auto Auction in exchange for personal property and a worthless $375 check. The title clerk testified…
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Appellant appeals his conviction of obtaining property in return for a worthless check.1 He was charged with obtaining four automobiles from the St. Pete Auto Auction in return for various items of personal property and a worthless check for $375. Appellant contends that because the State did not prove that he took actual physical possession of the automobiles until after he had reimbursed the auto auction for the bad check, the crime charged was not proved and if appellant was guilty of anything, he was guilty only of the misdemeanor or uttering a worthless check.2 We disagree.
Appellant plead nolo contendere to the charge. The trial court ordered that a hearing be held on the plea. At the hearing, the following uncontradicted testimony was adduced from the title clerk at the auto auction:
“Q All right, when he gave you this check what did you give him in return for it?
A I gave him the bills of sale and titles to the automobiles.
Q Did he take possession of the automobiles at that time?
A Yes. I don’t know if he took them out that night, but he had the gate releases to take them out.
Q He could have taken them out if he so desired?
A Yes.
Q You gave him bills of sale and titles to these automobiles?
A Yes.
Q If he had not given you this check would you have given him the bill of sale and titles?
A No.”
Thus, appellant had received all rights to immediate possession, i. e., bills of sale, titles, and gate releases. He had the right to remove the automobiles, or take them into his actual possession, at any time. The fact that appellant did not choose to take the automobiles into actual possession is not dispositive of this case. Although we cannot lay down a hard and fast rule, we hold under the above-mentioned circumstances, appellant took constructive possession of the automobiles so as to have “obtained” them in the manner proscribed by Fla.Stat., 1967, § 832.05(3), F.S.A. For this reason the judgment appealed is
Affirmed.
MANN and McNULTY, JJ., concur.