BLONEVA CLARK, APPELLANT,
v.
THE 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.
Clark was convicted of grand larceny after a bench trial. She appealed arguing there was a material variance between the information, which alleged the stolen dresses belonged to LaVerne Wharton, and the trial proof that Sears owned them. The court affirmed, holding the variance was immaterial because Wharton had superior possession rights as a Sears employee supervising stock.
The variance was immaterial and not fatal. Although Sears was the technical owner, Wharton had a superior right of possession as the employee responsible for stock supervision, making her adequate as the alleged owner for purposes of the information.
[1] A variance between the allegations of ownership of stolen property and the proof of ownership is not fatal if the allegations are sufficient to establish that the propert…
[2] Proof of ownership of stolen property is sufficient if it establishes the property was not the defendant's, protects the defendant from double jeopardy, and does not prej…
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Join FLexlaw to unlock all legal intelligence“The allegations of ownership should be sufficient enough to (1) establish that the property was not that of the accused, Pippin v. State, 102 Fla. 1124, 136 So. 883 (1931); (2) protect the accused against a second prosecution for the same crime, Gagne v. State, Fla.App. 1962, 138 So.2d 90, and (3) to avoid misleading or embarrassing the accused in the preparation of his defense.”
Establishes the three-part test for sufficiency of ownership allegations in larceny cases that the court applies to the alleged variance.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceClark was arrested with assorted dresses in her possession. The information charged her with stealing dresses belonging to LaVerne Wharton. At trial, …
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PER CURIAM.
The appellant was found guilty of grand larceny after a trial before the court without jury. On this appeal from the judgment, she urges a single point as follows:
“Whether the trial court erred in denying defendant’s motions for judgment of acquittal and dismissal of the information where there was a material and fatal variance between the allégate [sic] and the probata, . .
Appellant was charged by an information as follows:
* * * * * *
“ . . . did then and there unlawfully and feloniously take, steal and carry away certain personal property, to-wit: ASSORTED DRESSES, property of another, to-wit: LaVERNE WHARTON, as owner or custodian, said property being then and there of the value of ONE HUNDRED DOLLARS ($100.00) or more, in violation of 811.021 Florida Statutes [F.S.A.],”.
At the trial, it was stipulated that the dresses which the defendant had in her possession when she was arrested were the property of Sears, Roebuck & Company stores. The proof at trial was that La-Verne Wharton was an employee of Sears having as one of her duties the supervision of the stock of the store for the purpose of preventing thefts.
One of the cases upon which appellant relies for reversal is Hunt v. State, Fla. App.1967, 200 So. 2d 212. In that case, where the question was the sufficiency of the proof of the ownership of property which had been stolen, the court held the proof sufficient upon the ground that:
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“The allegations of ownership should be sufficient enough to (1) establish that the property was not that of the accused, Pippin v. State, 102 Fla. 1124, 136 So. 883 (1931); (2) protect the accused against a second prosecution for the same crime, Gagne v. State, Fla.App. 1962, 138 So. 2d 90, and (3) to avoid misleading or embarrassing the accused in the preparation of his defense. Addison v. State, 95 Fla. 737, 116 So. 629 (1928).”
* * * * * *
In view of the stipulation contained in the record, and the fact that it was clearly demonstrated that the alleged custodian had a superior right of possession to the property than that of the defendant, the judgment is affirmed. See Sifford v. State, Fla.App.1967, 202 So. 2d 14. Cf. Llano v. State, Fla.App. 1972, 271 So. 2d 34.
An examination of this record conclusively demonstrates (1) that the property was not that of the accused and that she claimed no rights therein, (2) that the accused is fully protected against a second prosecution for the same crime, and (3) that the accused was in no way misled or embarrassed in the preparation of her defense.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jeri Lee Haugland and Nils Richard Haugland v. State, 374 So. 2d 1026 (Fla. 3d DCA 1979)…concurring in part and dissenting in part. I concur in the decision except that I would affirm the defendant’s burglary convictions. I would not hold the variance (i. e., corporate owner instead of tenant in possession) fatal. See Clark v. State, 293 So. 2d 768 (Fla. 3d DCA 1974).…
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Mitchell v. State, 317 So. 2d 465 (Fla. 4th DCA 1975)…ownership or that there was no evidence from which a jury could have resolved the issue of ownership adversely to defendant. 32 Fla.Jur., Trial, sections 92-100. See also Williams v. State, Fla.App.1975, 309 So. 2d 630; Clark v. State, Fla.App.1974, 293 So. 2d 768. Measured by the standards set forth in Hunt v. State, supra, the defendant’s motions for judgment of acquittal based upon insufficient evidence to support the allegation of ownership were properly denied. I would affirm.…
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Miranda v. State, 300 So. 2d 311 (Fla. 3d DCA 1974)…PER CURIAM. Affirmed. Compare Clark v. State, Fla. App.1974, 293 So. 2d 768.…
Authorities Cited
- Exch. Nat'l Bank of Tampa v. Flynn-Harris-Bullard Co., 95 Fla. 737 (Fla. 1928)
- Pippin v. State, 102 Fla. 1124 (Fla. 1931)
- Confederation Life Ass'n v. Porfirio Pendas Garra, 138 So. 2d 90 (Fla. 3d DCA 1962)
- Hunt v. State, 200 So. 2d 212 (Fla. 3d DCA 1967)
- Llano v. State, 271 So. 2d 34 (Fla. 3d DCA 1972)
- Guyton v. State, 202 So. 2d 14 (Fla. 1st DCA 1967)
- Sifford v. State, 202 So. 2d 14 (Fla. 3d DCA 1967)