JACK JAMES MCHANEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed in part a conviction where the defendant received consecutive sentences for breaking and entering with intent to commit grand larceny and grand larceny. The court held that because these crimes constitute a single criminal transaction, the defendant may only be sentenced for the higher offense of breaking and entering with intent to commit a felony.
The court held that a defendant may only be sentenced for the highest offense when breaking and entering with intent to commit a felony and grand larceny are part of the same criminal transaction. Consecutive sentences are not permissible for these overlapping offenses.
[1] A defendant may not be sentenced consecutively for both breaking and entering with intent to commit a felony and the felony itself when both offenses arise from the same…
[2] The crime of breaking and entering with intent to commit a felony requires proof that a felony occurred or that property valued at $100 or more was present and could have…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The key element of breaking and entering with intent to commit a felony, i. e., grand larceny is the intent.”
Establishes that intent is the critical element distinguishing breaking and entering with intent to commit a felony from simple grand larceny.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceH. C. Smith and Charles W. Smith discovered a breaking and entering in progress at their home on June 20, 1973. H. C. Smith identified McHaney as one …
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RAWLS, Chief Judge.
The salient point on appeal is whether appellant may be found guilty of and have consecutive sentences imposed for both the crimes of breaking and entering with intent to commit a felony, i. e., grand larceny, and grand larceny.
H. C. Smith and Charles W. Smith returned to their home on the evening of June 20, 1973, to find that a breaking and entering was in process. H. C. Smith identified appellant as one of the culprits. The sheriff’s department was summoned to the scene and with the use of dogs, the deputies trailed the suspects to a nearby creek. There the deputies found appellant and his accomplices lying along the side of the creek. Officer Allred testified that he found on appellant $1,373.00 and a silver dollar key chain with the initials “C.W.S.” The Smith brothers testified that after the breaking and entering a pump gun, an old pistol, a key ring and $2,759.00 in cash were missing from their home. The jury convicted appellant of breaking and entering with intent to commit a felony and of grand larceny. Thereafter the trial court sentenced appellant to fifteen years in the state penitentiary for the crime of breaking and entering with intent to commit a felony, i. e., grand larceny and five years on the grand larceny conviction; the sentences to run consecutively.
Appellant urges that as the breaking and entering with intent to com mit a felony, i. e., grand larceny and the grand Jarceny were both a part of the same criminal transaction, he can only be sentenced for the highest offense, i. e., breaking and entering with intent to commit a felony. We agree. The key element of breaking and entering with intent to commit a felony, i. e., grand larceny is the intent.1 To prove the crime of breaking and entering with intent to commit a felony, it must be shown that a grand larceny did occur or that there was property valued at $100.00 or more which could have been the subject of the larceny.2 We hold that appellant can only be sentenced for the highest offense which is breaking and entering with intent to commit a felony.3
Before concluding we note that appellant also assigns as error the admission into evidence of certain physical evidence after the state had replied to appellant’s pretrial motion for discovery that it had no physical evidence in its possession. While the conduct of the state is inexcusable and might well give rise to a reversal of a conviction, we hold that in this case where appellant was caught red-handed the error is harmless. Accordingly, we reverse in part and remand with instructions that the trial court, without the necessity of bringing appellant before it, vacate appellant’s sentence for grand larceny. The judgment and sentence as to appellant’s conviction of breaking and entering with intent to commit a felony, i. e., grand larceny, is affirmed.
Affirmed in part and reversed in part.
SPECTOR and JOHNSON, JJ., concur. . Von Eberstein v. State, 270 So. 2d 444 (1 Fla.App.1972) ; and Turnnett v. State, 116 Fla. 562, 156 So. 538 (Fla.1934).
. Adams v. State, 242 So. 2d 723 (1 Fla.App.1971). Also see Langley v. State, Fla.App., 292 So. 2d 613, Opinion filed April 11, 1974; Edmond v. State, 280 So. 2d 449 (2 Fla.App.1973), cert. denied 287 So. 2d 690; Hardrick v. State, Fla.App., 293 So. 2d 135, Opinion filed April 19, 1974; and Ashley v. State, Fla.App., 292 So. 2d 616, Opinion filed April 3, 1974.
. We are aware of the contra holdings of the Fourth District Court of Appeal. See White v. State, 274 So. 2d 6 (4 Fla.App.1973) ; and State v. Conrad, 243 So. 2d 174 (4 Fla.App.1971).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ciro Estevez v. State, 313 So. 2d 692 (Fla. 1975)…sion in Cone v. State, 285 So. 2d 12, the only valid sentence that could have been entered was for the highest offense. Confronted with the identical question the District Court of Appeal, First District, has very recently held in McHaney v. State, 295 So. 2d 355 (Fla.App. 1, 1974), as follows: “Appellant urges that as the breaking and entering with intent to commit a felony, i. e., grand larceny and the grand larceny were both a part of the same criminal transaction, he can only be sentenced for the highes…
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State v. McHANEY, 314 So. 2d 134 (Fla. 1975)…PER CURIAM. This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, in McHaney v. State, reported at 295 So. 2d 355 (Fla.App.1, 1974), which directly conflicts with Estevez v. State, 290 So. 2d 138 (Fla.App.3d, 1974), decision approved by this Court, 313 So. 2d 692 (Fla.1975). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution. In…
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Kelsey v. State, 317 So. 2d 445 (Fla. 1st DCA 1975)…RAWLS, Chief Judge (specially concurring). I am in full accord with this Court’s decision in McHaney v. State, 295 So. 2d 355 (1 Fla.App. 1974), and thus do not concur in the reservations expressed by Judge Boyer as to the opinion of this Court in that case. I do concur, however, in the remainder of the opinion and the judgment entered.…1 / 2
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 (13 total)
- Ellis Edmond v. State, 280 So. 2d 449 (Fla. 2d DCA 1973)
- State v. Conrad, 243 So. 2d 174 (Fla. 4th DCA 1971)
- Hoyle E. Turknett v. State, 116 Fla. 562 (Fla. 1934)
- White v. State, 274 So. 2d 6 (Fla. 4th DCA 1973)
- Hardrick v. State, 293 So. 2d 135 (Fla. 2d DCA 1974)
- Daiger v. Daiger, 116 Fla. 562 (Fla. 1934)
- von Eberstein v. State, 270 So. 2d 444 (Fla. 1st DCA 1972)
- Kimmons v. State, 242 So. 2d 723 (Fla. 1st DCA 1971)
- Adams v. State, 242 So. 2d 723 (Fla. 1st DCA 1971)
- Ashley v. State, 292 So. 2d 616 (Fla. 2d DCA 1974)