EDDIE B. ASHLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot be convicted of a separate offense with which they were not charged.
Appellant was charged with breaking and entering a building with intent to commit grand larceny, but the jury returned a verdict finding him guilty of…
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GRIMES, Judge.
Appellant was charged pursuant to Fla. Stat. § 810.02, F.S.A., with breaking and entering a building with intent to commit a felony therein, to-wit: grand larceny. Following a not guilty plea, the jury returned a verdict finding him guilty of grand larceny. Appellant was adjudicated guilty of grand larceny.
Grand larceny is not a lesser included offense to the crime of breaking and entering a building with intent to commit a felony therein, to-wit: grand larceny. Albritton v. State, 1939, 137 Fla. 20, 187 So. 601; Davis v. State, Fla.App.2d, 1969, 226 So. 2d 257. The breaking and entering of a building with the intent to commit a felony is an entirely separate offense from the felony which is intended. Albritton v. State, supra; State v. Conrad, Fla.App. 4th, 1971, 243 So. 2d 174. An accused may be convicted of either or both the breaking and entering and the intended felony. Taylor v. State, 1939, 138 Fla. 762, 190 So. 262; Goodwin v. State, 1946, 157 Fla. 751, 26 So. 2d 898; Evans v. State, Fla.App.3rd 1967, 197 So. 2d 323. The evidence essential to prove one is not essential to conviction on the other, and the gravamen of the two offenses is not the same. Taylor v. State, supra; Evans v. State, supra. Hence, appellant was convicted on a charge which was not made against him.
One cannot be convicted for a separate offense with which he is not charged. Cole v. Arkansas, 1948, 333 U.S. 196, 68 S.Ct. 514, 98 L.Ed.2d 644; Perkins v. Mayo, Fla.1957, 92 So. 2d 641. See Reil ly v. State, Fla.App.3rd, 1968, 212 So. 2d 796.
The judgment is reversed.
HOBSON, A. C. J., and BOARDMAN, J., concur.
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Citator
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State v. DYE, 346 So. 2d 538 (Fla. 1977)…. 2d 699 (Fla.1st DCA 1976); Evanco v. State, 318 So. 2d 535 (Fla.1st DCA 1975); Haley v. State, 315 So. 2d 525 (Fla.2d DCA 1975); Rodgers v. State, 325 So. 2d 48 (Fla.2d DCA 1975); Causey v. State, 307 So. 2d 197 (Fla.2d DCA 1975); Ashley v. State, 292 So. 2d 616 (Fla.2d DCA 1974); Priester v. State, 294 So. 2d 421 (Fla.4th DCA 1974). In the instant case, the information is defective because it does not allege that “the offender defied an order to leave, communicated to him by an authorized person.” Not only…
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Corn v. State, 332 So. 2d 4 (Fla. 1976)…; Smith v. State, 324 So. 2d 699 (Fla.App.1st Dist. 1976); Rodgers v. State, 325 So. 2d 48 (Fla.App.2d Dist. 1975); Causey v. State, 307 So. 2d 197 (Fla.App.2d Dist. 1975); Priester v. State, 294 So. 2d 421 (Fla.App.4th Dist. 1974); Ashley v. State, 292 So. 2d 616 (Fla.App.2d Dist. 1974). The majority states, “It appears, however, that the judgment of the lower court failed to expressly adjudicate that appellant was guilty of the crime charged.” I agree. If the appellant was charged with any offense, the cha…
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Priester v. State, 294 So. 2d 421 (Fla. 4th DCA 1974)…d distinct offense and not a lesser included offense of the crime charged. State v. Conrad, Fla.App.1971, 243 So. 2d 174. On an identical factual situation the Second District Court of Appeal similarly held in the case of Ashley v. State of Florida, 292 So. 2d 616, opinion filed April 3, 1974. The jury’s verdict acquitted him of burglary. The judgment is reversed with directions that appellant be discharged from the crime charged in the information. Reversed. WALDEN and CROSS, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cole v. Arkansas, 333 U.S. 196 (U.S. 1948)
- Goodwin v. State, 157 Fla. 751 (Fla. 1946)
- Perkins v. Mayo, 92 So. 2d 641 (Fla. 1957)
- Aldine Taylor v. State, 138 Fla. 762 (Fla. 1939)
- Davis v. State, 226 So. 2d 257 (Fla. 2d DCA 1969)
- State v. Conrad, 243 So. 2d 174 (Fla. 4th DCA 1971)
- Evans v. State, 197 So. 2d 323 (Fla. 3d DCA 1967)
- Albritton v. State, 137 Fla. 20 (Fla. 1939)
- Reilly v. State, 212 So. 2d 796 (Fla. 3d DCA 1968)