BENJAMIN F. GILFORD AND ALAN E. SCHAFFER, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellants convicted of breaking and entering with intent to commit grand larceny were properly denied a jury instruction on the lesser included offense of petit larceny because the evidence overwhelmingly established the stolen property exceeded $100 in value.
A trial court properly refuses a jury instruction on a lesser included offense when the evidence overwhelmingly establishes that the essential element distinguishing the lesser offense is not satisfied.
[1] A trial court may properly refuse a jury instruction on a lesser included offense when the evidence overwhelmingly establishes that the factual predicate for the lesser o…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceAppellants Gilford and Schaffer were convicted after jury trial of breaking and entering with intent to commit grand larceny. The value of the stolen …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Breaking And Entering With Intent To Commit Grand Larceny cases and more on FLexlaw
Appellants, Benjamin F. Gilford and Alan E. Schaffer, appeal from a conviction after jury trial of the crime of breaking and entering with intent to commit a felony, to wit: grand larceny, in violation of Florida Statutes, Section 810.02, F.S.A.
The only significant, arguable point raised by appellants is that the trial judge committed reversible error by failing to instruct the jury upon request timely made by counsel for appellants on the lesser included offense of breaking and entering with intent to commit a misdemeanor, to wit: petit larceny.
We have made a careful review and study of the record and briefs and it very definitely appears from that examination that the proof of the guilt of each appellant is overwhelming and convincing.
One of the essential elements necessary to prove the offense charged is the value of the property at the time it was stolen. If the record disclosed that there was a question of whether the property stolen was more or less than $100 we would, of course, agree with appellants’ contention that the requested instruction of petit larceny should have been given. However, there is absolutely no evidence whatsoever before us to indicate that the value of the property stolen was less than $100. See Section 811.021(2), Florida Statutes, F.S. A.
We hold, therefore, that the appellants’ requested instruction was correctly and properly refused and that the error asserted, if any, is harmless error under Section 924.33, Florida Statutes, F.S.A.
*920Accordingly, the judgments and sentences appealed are
Affirmed.
HOBSON, A. C. J., and BOARDMAN, J., concur.
McNULTY, J., dissents with opinion.
(dissenting).
I dissent on the authority of Brown v. State (Fla.1968), 206 So.2d 377. The requested charge was the next lower to that found by the jury, thus DeLaine v. State (Fla.1972), 262 So.2d 655, is distinguishable, oand the failure to give such charge was timely objected to and raised on appeal. I would reverse.
McNULTY, Judge
(dissenting).
I dissent on the authority of Brown v. State (Fla.1968), 206 So. 2d 377. The requested charge was the next lower to that found by the jury, thus DeLaine v. State (Fla.1972), 262 So. 2d 655, is distinguishable, oand the failure to give such charge was timely objected to and raised on appeal. I would reverse.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Gilford v. State, 313 So. 2d 729 (Fla. 1975)…ay modify the present well-established rules which are in conformity with Brown v. State, supra.” The present cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 281 So. 2d 919 (1973)., Our jurisdiction is asserted to arise from conflict under Art. V, § 3(b)(3), Fla.Const., between the decision sought to be reviewed and this Court’s opinions in Brown v. State, 206 So. 2d 377 (Fla.1968), and DeLaine v. State, 262 So. 2d 655…
-
Gilford v. State, 285 So. 2d 24 (Fla. 1973)…Certiorari dismissed. 281 So. 2d 919.…
Authorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- DeLAINE v. State, 262 So. 2d 655 (Fla. 1972)