ERNEST WHITE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ernest White was convicted of breaking and entering with intent to commit grand larceny and petit larceny. The appellate court reversed the conviction on count one, finding insufficient evidence of intent to commit grand larceny, and remanded for entry of appropriate judgments and sentences on both counts.
The court held that the evidence was insufficient to sustain a conviction for breaking and entering with intent to commit grand larceny because the state failed to establish the stolen property's value exceeded $100. Instead, a judgment of guilty should be entered for breaking and entering with intent to commit petit larceny. The court also held that breaking and entering and the underlying larceny are separate substantive offenses requiring separate judgments and sentences on each count.
[1] A defendant who voluntarily absents himself from trial after its commencement may be tried and convicted in absentia.
[2] Proof of intent to commit grand larceny requires evidence of the market value of stolen property at the time of the theft, or other circumstances demonstrating such inten…
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Join FLexlaw to unlock all legal intelligence“the best evidence of his intent is what he did steal”
Establishes the principle that when intent to commit a felony must be proven, the value of property actually stolen demonstrates the level of intent
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Join FLexlaw to unlock all legal intelligenceWhite was apprehended shortly after leaving a dwelling with stolen property: a color television set, a camera, and a portable radio. The state present…
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Appellant was charged in a two count information with (1) breaking and entering with intent to commit a felony, to-wit: grand larceny, and (2) grand larceny. By jury verdict he was found guilty of the first count, and also guilty of petit larceny as a lesser offense of the second count.
Appellant contends that the evidence was insufficient to permit the jury to infer that he had the requisite intent to commit grand larceny when he broke and entered the dwelling. Appellant’s position is well taken. The evidence established that appellant was apprehended shortly after he had left the premises, at which time he had in his possession a color television set, a camera, and a portable radio, all of which had been stolen from the dwelling. However, the State offered no evidence to establish that this property had a value of $100.-00 or more at the time of the taking, an essential element of grand larceny. Spencer v. State, Fla.App.1968, 217 So.2d 331. Beyond being apprehended “red-handed” with the stolen property, there was no other evidence or circumstances bearing on the question of appellant’s intent. In such cases it has been said that the best evidence of his intent is what he did steal. Rumph v. State, Fla.App.1971, 248 So.2d 526.
We conclude on the basis of Rumph v. State, supra; Adams v. State, Fla.App.1971, 242 So.2d 723, and Todd v. State, Fla.App. 1966, 187 So.2d 908, that the evidence was insufficient to sustain the conviction of the crime of breaking and entering with intent to commit a felony, and that a judgment of guilt should be entered as to the lesser included crime of breaking and entering with intent to commit a misdemeanor, to-wit: petit larceny.
The certified copy of judgment and sentence reflects that after appellant was adjudged guilty of the crime of breaking and entering with intent to commit a felony and sentenced accordingly, the following language appears:
“At this time, a judgment of guilty was entered herein as to Count Two, but the defendant was not sentenced as to Count Two in conformance with 4th District Court of Appeals Opinion filed on April 30, 1971 (Lietch v. State) . . . .”
The judgment of guilty as to count two is misleading (if not erroneous) since count two of the information charged grand larceny, whereas the jury by its verdict found appellant guilty of petit larceny. Furthermore, the trial court’s reliance upon the case of Lietch v. State, Fla.App.1971, 248 So.2d 203, as justification for failure to sentence appellant on the separate conviction of petit larceny was misplaced. The Lietch case involved merely different facets of the same criminal transaction. That is inapposite to this case. The crime of breaking and entering with intent to commit a specified felony or misdemeanor, and the crime of having committed or having attempted to commit the same specified felony or misdemeanor, are two separate and distinct substantive offenses. State v. Conrad, Fla.App.1971, 243 So.2d 174.
The judgment on each count is reversed and the sentence on count one is vacated, and this cause is remanded for entry of judgment and sentence on each count consistent herewith.
Reversed and remanded.
REED, C. J., and CROSS, JJ., concur.
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Citator
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Ciro Estevez v. State, 313 So. 2d 692 (Fla. 1975)…n. Kish v. State, 198 So. 2d 639 (Fla.App. 3, 1967), Nesmith v. State, 290 So. 2d 508 (Fla.App. 3; 1974). See also decisions of the District Court of Appeal, Fourth District, in State v. Conrad, 243 So. 2d 174 (Fla.App. 4, 1971), and White v. State, 274 So. 2d 6 (Fla.App. 4, 1974). To the contrary, the District Court of Appeal, Second District, has determined that breaking and entering with intent to commit grand larceny and grand larceny are facets of the same transaction and that the maximum punishment i…
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Ellis Edmond v. State, 280 So. 2d 449 (Fla. 2d DCA 1973)…Conrad, Fla.App. 4th 1971, 243 So. 2d 174, to the conclusion, derived in part from Footman, from which we have since receded, that cumulative punishment is permissible where breaking and entering ensues in larceny. White v. State, Fla.App. 4th 1973, 274 So. 2d 6. See also Foster v. State, Fla.App. 1st 1973, 276 So. 2d 512. After analyzing all of the Florida cases on the subject,12 adhered to with great [*454] consistency by our Supreme Court, we think that the imposition of a maximum sentence of fifteen ye…
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Guerrero v. State, 289 So. 2d 396 (Fla. 1974)…firmed his conviction of petit larceny and breaking and entering a dwelling with intent to commit grand larceny. The petition reflected probable jurisdiction in [*397] this Court based upon a conflict between the instant decision and White v. State, 274 So. 2d 6 (4th DCA Fla.1973); Rumph v. State, 248 So. 2d 526 (3rd DCA Fla.1971); Adams v. State, 242 So. 2d 723 (1st DCA Fla.1971); Todd v. State, 187 So. 2d 908 (3rd DCA Fla.1966); and Channell v. State, 107 So. 2d 284 (2nd DCA Fla. 1958). Florida Constituti…1 / 2
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Airlift Int'l, Inc. v. Carr, 187 So. 2d 908 (Fla. 3d DCA 1966)
- State v. Conrad, 243 So. 2d 174 (Fla. 4th DCA 1971)
- Rumph v. State, 248 So. 2d 526 (Fla. 1st DCA 1971)
- Lietch v. State, 248 So. 2d 203 (Fla. 4th DCA 1971)
- Verdalen C. Spencer v. State, 217 So. 2d 331 (Fla. 4th DCA 1968)
- Kimmons v. State, 242 So. 2d 723 (Fla. 1st DCA 1971)
- Adams v. State, 242 So. 2d 723 (Fla. 1st DCA 1971)