ROBERT LEE CHAIRES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Chaires was convicted by jury of attempted breaking and entering with intent to commit a misdemeanor and sentenced to three years. He appealed on grounds of insufficient identity evidence and an excessive sentence. The court affirmed the conviction but reversed the excessive portion of the sentence, reducing it to the statutory maximum of 2.5 years.
The conviction was affirmed as the evidence of identity was sufficient for jury consideration. The three-year sentence was partially reversed because it exceeded the statutory maximum of 2.5 years under Florida Statutes Section 776.04; the sentence was reduced to 2.5 years without need for resentencing.
[1] A jury's determination of identity, based on conflicting testimony between an eyewitness and the defendant, will not be disturbed on appeal.
[2] A sentence exceeding the statutory maximum is invalid as to the excess portion.
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Join FLexlaw to unlock all legal intelligence“A review of the testimony given by the lady occupant of the trailer which was sought to be entered by appellant indicates that appellant was identified as the person who was on the ground under her window trying to escape detection”
Establishes the basis for rejecting the insufficient identity argument; eyewitness identification was adequate for jury consideration
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Join FLexlaw to unlock all legal intelligenceThe occupant of a trailer testified that she saw Chaires on the ground beneath her window trying to escape detection, and he ultimately stood up in fr…
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Appellant seeks reversal of his conviction and sentence following a jury trial on charges of attempted breaking and entering with intent to commit a misdemean- or. Two questions are raised by appellant. First, he contends that the evidence on the question of identity was insufficient. There is no merit to this contention. A review of the testimony given by the lady occupant of the trailer which was sought to be entered by appellant indicates that appellant was identified as the person who was on the ground under her window trying to escape detection and that he ultimately stood up in front of her and that she identified him as the person in question. Appellant testified that he was not on the scene at all. This conflict in the testimony raised an issue to be resolved by the jury. No error is shown in this regard. Accordingly, on the question of the conviction, the same is affirmed.
The State concedes that the appellant is correct in his contention that 2% years is the maximum sentence which can be imposed upon him under the provisions *530of Section 776.04, Florida Statutes, F.S.A., as applied in State v. Fitz, 202 So.2d 841 (Fla.1967). Accordingly, we hold that that portion of the three-year sentence imposed which exceeds the maximum allowable sentence of 2Yz years is contrary to law and said excess is hereby declared to be invalid. The remainder of the sentence, that is, the remaining 2% years, is declared valid and therefore affirmed without the necessity of bringing the appellant before the trial court for resentencing. See Johnson v. State, 260 So.2d 212 (Fla.App.).
Affirmed in part and reversed in part.
SPECTOR, C. J., and CARROLL, DONALD K. and WIGGINTON, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Peyton v. State, 383 So. 2d 737 (Fla. 3d DCA 1980)…m of three years was, however, unlawful only to the extent of the excess. Silkey v. State, 356 So. 2d 924 (Fla. 2d DCA 1978); Moore v. State, 324 So. 2d 690 (Fla. 1st DCA 1976); McBride v. State, 311 So. 2d 752 (Fla. 4th DCA 1975); Chaires v. State, 265 So. 2d 529 (Fla. 1st DCA 1972); Brown v. State, 264 So. 2d 28 (Fla. 1st DCA 1972). The judgment was effective to place Peyton on probation for one year. On February 14, 1978, within this first year of probation, Peyton was charged with violations of the condi…
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McBRIDE v. State, 311 So. 2d 752 (Fla. 4th DCA 1975)…and said excess is declared to be invalid; the remaining portion of the sentence, 790 days, is declared valid and is affirmed without the necessity of bringing the appellant before the trial court for resentenc-ing. Chaires v. State, Fla.App. 1972, 265 So. 2d 529. Affirmed, in part; reversed, in part. OWEN, C. J., and WALDEN and MA-GER, JJ., concur.…
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Silkey v. State, 356 So. 2d 924 (Fla. 2d DCA 1978)…hat portion of the sentence requiring appellant to serve a sixth year in prison in lieu of payment of the fine is void and is hereby stricken, without the necessity of bringing appellant before the trial court for resentencing. See Chaires v. State, 265 So. 2d 529 (Fla. 1st DCA 1972). In all other respects, the judgment and sentence appealed is affirmed. GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sinclair Johnson v. State, 260 So. 2d 212 (Fla. 1st DCA 1972)
- State v. Fitz, 202 So. 2d 841 (Fla. 1967)