ROY EINER SKOV, A/K/A WILLIAM JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellant was convicted of breaking and entering a phone booth with intent to commit petit larceny and possession of burglary tools. The court reversed the conviction on count one because, following State v. Jackson, a conviction for breaking and entering a phone booth cannot be sustained when implied consent to enter has not been negated, and the state cannot convict on a different theory than charged. The court affirmed the conviction on count two for possession of burglary tools.
The conviction under count one for breaking and entering with intent to commit petit larceny is reversed because, following Jackson, implied consent to enter the phone booth had not been negated and the state could not convict the appellant of a different offense (entering without breaking) than that charged (breaking and entering). The conviction under count two for possession of burglary tools is affirmed because the evidence clearly established the appellant's guilt.
[1] A conviction for breaking and entering a phone booth with intent to commit a felony cannot be sustained when the implied consent to enter has not been negated.
[2] A person may be convicted under a statute for entering without breaking with intent to commit a misdemeanor.
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Join FLexlaw to unlock all legal intelligence“The only difference between Jackson and the instant case is that here the appellant was charged with breaking and entering with intent to commit a misdemeanor.”
Establishes the factual distinction between the controlling precedent and the current case
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Join FLexlaw to unlock all legal intelligenceThe appellant was charged with breaking and entering a phone booth with intent to commit petit larceny and possession of burglary tools. The state cha…
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GRIMES, Judge.
The appellant was convicted of the offenses of breaking and entering a phone booth with intent to commit a misdemean-or, to-wit, petit larceny (count one) and of possession of burglary tools (count two).
On similar facts, the Supreme Court in State v. Jackson, Fla.1973, 281 So. 2d 353, held that a conviction for breaking and entering a phone booth with intent to commit a felony could not be sustained because the implied consent to enter had not been ne gated. The only difference between Jackson and the instant case is that here the appellant was charged with breaking and entering with intent to commit a misdemeanor. One who “breaks and énters” or “enters without breaking” with intent to commit a misdemeanor may be convicted under F.S. 810.05, F.S.A. The appellant could have been convicted under F.S. 810.-05, F.S.A., for entering without breaking. State v. High, Fla. 1973, 281 So. 2d 356. The State chose to charge him with breaking and entering, but, in view of Jackson, could not convict him of that offense.
One cannot be charged in an indictment or information with one offense and convicted of another. Perkins v. Mayo, Fla. 1957, 92 So. 2d 641. As stated in Long v. State, Fla. 1957, 92 So. 2d 259:
“The general rule is where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment. The Statute provides a penalty for acts in the disjunctive. The indictment or information may have alleged them in the conjunctive and proof of one would have sufficed but if one of the state of facts is alleged, it cannot be established by proof of the other.”
The appellant’s contentions with reference to his conviction for possession of burglary tools is totally without merit because a policeman testified that he watched the appellant prying open the money box on the telephone.
The judgment of conviction under count one is reversed. The judgment of conviction under count two is affirmed.
HOBSON, A. C. J., and McNULTY, J., concur.
In its petition for rehearing, the State, for the first time, calls attention to our previous decision of Isaac v. State, Fla. App.2d, 1961, 134 So. 2d 38. The rationale of that case appears to conflict at least in part with our opinion. However, it further appears that Isaac is also in conflict with the earlier opinion of the Supreme Court in Long v. State, supra. Cf. Allison v. Mayo, 1947, 158 Fla. 700, 29 So. 2d 750.
Accordingly, we hereby recede from and overrule Isaac to the extent that it conflicts with Long and with this opinion. Nothing herein should be construed to prevent the State in a proper case from charging “breaking and entering” and “entering without breaking” in separate counts and obtaining a conviction on one or the other of such counts.
The petition for rehearing is denied.
HOBSON, A. C. J., and McNULTY and GRIMES, JJ., concur.
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O'Neal v. State, 308 So. 2d 569 (Fla. 2d DCA 1975)…lant now contends the trial court erred in denying his RCrP 3.850 motion in that he was found guilty of an offense for which he was not charged and one which was not a lesser included offense in the crime charged. In Skov v. State, Fla.App.2d 1974, 292 So. 2d 64, cert. denied, Fla., 298 So. 2d 165, we held it was error to convict an accused under F.S. 810.05 of “entering without breaking” when he was charged with “breaking and entering.” In the case sub judice the appellant was charged under F. S. 810.051 w…
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Roberts v. State, 320 So. 2d 832 (Fla. 2d DCA 1975)…IMES, Judge. Once again we are faced with the problem of one being convicted of entering without breaking with intent to commit a misdemeanor on a charge of breaking and entering with the same intent. Beginning with Skov v. State, Fla.App.2d, 1974, 292 So. 2d 64, and followed in O’Neal v. State, Fla.App.2d, 1975, 308 So. 2d 569, we held that such a conviction cannot stand. See also Pettigrew v. State, Fla.App.2d, 1975, 316 So. 2d 69. We now find it necessary to revisit these decisions. The accusatory plead…
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Smith v. State, 548 So. 2d 755 (Fla. 5th DCA 1989)…m for the aggravated assault crime. This is the generally accepted method of distinguishing the greater from the lesser crime in a Carawan situation. In Isaac v. State, 134 So. 2d 38, 39 (Fla. 2d DCA 1961), overruled on other grounds, Skov v. State, 292 So. 2d 64 (Fla. 2d DCA), cert. denied, 298 So. 2d 165 (Fla.1974), the court stated: “The character of the offense is determined by the nature of the punishment; the maximum punishment to which accused is liable to be subjected is the test by which the degree…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Long v. State, 92 So. 2d 259 (Fla. 1957)
- Perkins v. Mayo, 92 So. 2d 641 (Fla. 1957)
- State v. Bennie Jackson and Henry Fisher, 281 So. 2d 353 (Fla. 1973)
- Allison v. Mayo, 158 Fla. 700 (Fla. 1947)
- Isaac v. State, 134 So. 2d 38 (Fla. 2d DCA 1961)
- State v. High, 281 So. 2d 356 (Fla. 1973)