ALBERTO GUERRERO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1973-07-03
No. 73-76
Before BARKDULL, C. J., and CHARLES CARROLL and HAVER-FIELD, JJ.
281 So. 2d 557 Florida District Court of Appeal, Third District (1973) Negative Treatment
Cited by 6 cases

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Synopsis

Alberto Guerrero was convicted of breaking and entering a dwelling with intent to commit grand larceny and petit larceny after being observed removing a television set and sweaters from a victim's apartment. The Third District Court of Appeal affirmed the convictions, holding that the state's failure to prove the stolen items exceeded $100 in value did not preclude conviction where other circumstances demonstrated intent to commit grand larceny.


Holding

The trial court did not err in denying the pre-sentencing investigation request because such matters were discretionary at the time of sentencing, and a mitigation hearing was held. The state presented sufficient evidence to support the conviction for breaking and entering with intent to commit grand larceny despite failing to prove the stolen items exceeded $100 in value, as other circumstances demonstrated the requisite intent.


Headnotes

[1] A trial court has discretion to order a pre-sentencing investigation.

[2] Evidence of the value of stolen items is not always determinative of the intent to commit grand larceny when breaking and entering a dwelling.

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Key Quotes

“While, in the absence of 'other evidence or circumstances,' the best evidence of his intent is what he did steal, nevertheless, his said intent may be proven by such other evidence or circumstances.”

Establishes that intent to commit grand larceny may be proven by circumstantial evidence beyond merely what was stolen

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Facts & Procedural History

Guerrero was seen in the victim's apartment by a delivery person. A television set and sweaters were on the floor near the open door. Guerrero accepte…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Charged by information in one count with breaking and entering a dwelling with intent to commit grand larceny, and in a second count with grand larceny, on trial before the court without a jury the appellant was convicted on the first count, and found guilty on the lesser offense of petit larceny on the second count. He filed this appeal from the judgment and sentence thereon.

The appellant was seen in the victim’s apartment, by a person making a delivery there. The television set and some sweaters were on the floor near the open door. The appellant accepted the delivery, and re-entered the apartment. The person later saw appellant leave on a bicycle, carrying the television set and the sweaters. The person followed in his truck. The appellant dropped the television set and one of the sweaters, and proceeded to a restaurant which was some distance away. The person followed the appellant to the restaurant, and saw the appellant drive therefrom in an automobile. The person obtained the license number, and upon encountering the police gave them the number. At the trial the state failed to prove that the television set and sweaters taken were of the value of $100 or more.

*558The appellant contends that the trial court committed reversible error by-denying his request for a pre-sentencing investigation. The judgment of conviction was entered on May 5, 1972. At that time the matter of ordering a pre-sentencing investigation was one within the discretion of the court. Clarke v. State, Fla.App.1970, 230 So.2d 486. Here prior to sentencing, a hearing was had in which matters bearing on mitigation and extenuation were presented for the court’s consideration. No error was committed by the trial court in denying the defendant’s motion for pre-sentencing investigation.

We reject as unsound the contention of the appellant that the evidence was insufficient to sustain conviction on the charge of breaking and entering the dwelling with intent to commit grand larceny. See Miller v. State, Fla.App.1969, 220 So.2d 652.

The appellant cited White v. State, Fla.App.1973, 274 So.2d 6, recently decided by the fourth district. In that case a defendant faced similar charges, and was similarly convicted. In reversing, the court regarded the evidence to be insufficient to establish that the breaking and entering was with intent to commit grand larceny, where it appeared that shortly after the defendant had left the premises he was found to have in his possession a number of articles of personal property which had been taken from the dwelling, but as to which the state did not present evidence that the value of the items taken was $100 or more. In reaching that conclusion the Court in White cited Rumph v. State, Fla.App.1971, 248 So.2d 526, for the proposition that “In such cases it has been said that the best evidence of his intent is what he did steal.” We note that in Rumph v. State, supra, in referring to the element of intent to commit grand larceny the court stated: “While, in the absence of ‘other evidence or circumstances,’ the best evidence of his intent is what he did steal, nevertheless, his said intent may be proven by such other evidence or circumstances.”

Where one breaks and enters a dwelling and comes out with a television set, absence of proof of its value, or the fact, if such be the fact, that the value of the television set was less than $100, should not necessarily require a holding that the breaking and entering was without intent to commit grand larceny, particularly, as said in Rumph, when there are other circumstances bearing on intent.

In this case there were other circumstances of that character, and in our view the evidence was sufficient to support the conviction on the first count.

No reversible error having been shown the judgment is affirmed.


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Citator

Cited By

  • Platt v. State, 291 So. 2d 96 (Fla. 2d DCA 1974)
    …e was apprehended in the dwelling before taking anything. While this case was under consideration, the Supreme Court of Florida decided Guerrero v. State, 289 So. 2d 396, Opinion filed January 23, 1974, reversing Guerrero v. State, Fla.App.3d 1973, 281 So. 2d 557. Mr. Chief Justice Carlton’s opinion for the Supreme Court points out clearly why we sustain the higher conviction in one of these burglaries and reverse it as to the other. “In all five of the cases cited for conflict, convictions for breaking and…
  • Guerrero v. State, 289 So. 2d 396 (Fla. 1974)
    …CARLTON, Chief Justice: Petitioner seeks certiorari review of a decision of the District Court of Appeal, Third District, reported at 281 So. 2d 557, which affirmed 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…
  • Guerrero v. State, 291 So. 2d 103 (Fla. 3d DCA 1974)
    …PER CURIAM. Whereas, the judgment of this court was entered on July 3, 1973 (281 So. 2d 557) affirming the judgments of conviction and sentences of the Circuit Court for Dade County, Florida (formerly Criminal Court1 of Record # 72-984) in the above styled cause; and Whereas, on review of this court’s judgment, by certiorari, the Supreme…

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