ROGER RAY BURNS, APPELLANT,
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.
Roger Ray Burns pleaded guilty to grand larceny after being charged with larceny of a calf under a repealed statute. The court affirmed his conviction while treating the guilty plea as an amendment of the charging document, despite the original charge carrying a mandatory two-year minimum sentence that grand larceny did not require.
The court affirmed Burns' conviction, treating the guilty plea as a valid amendment of the accusatory writ in open court with the acquiescence of all parties. The court held that the offense to which judgment was entered (grand larceny) was less severe than that originally charged in that it did not require a minimum penalty.
[1] A defendant's knowing and intelligent waiver of rights during a guilty plea colloquy disposes of claims of procedural defects in the plea acceptance.
[2] A claim of ineffective assistance of counsel not substantiated by the record on direct appeal may be raised in a petition for post-conviction relief.
Previewing 2 of 5 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 acceptance by Burns' counsel of the opportunity to plead to grand larceny may have constituted a cunning ploy. It certainly is harmless.”
The court recognized that pleading to the lesser offense avoided the mandatory two-year minimum sentence required for the original charge, but found the outcome harmless and proper under the circumstances.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBurns was charged with larceny of a calf under Florida Statute Section 811.11 (1971). At arraignment, his public defender tendered a guilty plea to th…
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 Larceny cases and more on FLexlaw
MANN, Chief Judge.
Burns was charged with larceny of a calf under Florida Statute Section 811.11 (1971). At arraignment, the Assistant Public Defender assigned to represent him tendered a plea of guilty to grand larceny. The plea was accepted after a colloquy between the trial judge and the defendant in which the defendant’s rights were patiently explained to him and the record shows conclusively that he knowingly and intelligently waived them. This disposes of the first two contentions in Burns’ petition for post-conviction relief.
Burns’ third contention is that he was inadequately represented by counsel. The record on this direct appeal does not substantiate this claim. If there is any viola tion of the Sixth Amendment which Burns wishes to raise specifically, he is at liberty to do so pursuant to CrPR 3.850 in a petition directed to the trial court.
What troubles us about this case is that Burns was adjudicated guilty of the offense of grand larceny although he was originally charged with larceny of a calf under a statute since repealed. Both carry the same maximum sentence, five years.1 However, Fla.Stat. § 811.11 (1969) requires a minimum 2-year sentence for larceny of a calf, a provision not applicable to grand larceny. Consequently, the acceptance by Burns’ counsel of the opportunity to plead to grand larceny may have constituted a cunning ploy. It certainly is harmless.
We are thus confronted with the question whether to treat the adjudication of guilt and the sentence entered thereupon as void or to treat the proceedings conducted in open court and duly recorded as constituting a mutually agreeable amendment of the accusatory writ. Under the peculiar circumstances of this case we think the latter course is proper. We are aware that the Attorney General has long advised that a new affidavit be filed before a magistrate accepts a plea to a lesser offense.2 In the present case we think it proper to treat the proceedings as an amendment of the accusatory writ. All parties agreed, and the offense to which the judgment relates was less severe than that charged in the sense that it did not require a minimum penalty. If the situation were such that, following the reception of the plea, the trial court sentenced Burns to one year’s imprisonment, we doubt that the state should be heard to complain that the offense originally charged carried a two year minimum sentence. If reason exists for vacation of the judgment pursuant to Rule 3.850 CrPR, Burns is at liberty to make such a showing. However, there being a full record of acquiescence on both sides to the plea of guilty of grand larceny, we treat the information as amended in open court and affirm the judgment entered thereon.
Affirmed.
BOARDMAN and GRIMES, JJ., concur. . See Fla.Stat. § 811.021(1) (d) (1969) and § 811.11 (1969).
. Op.A.G. 049-81, Op.A.G. 058-46. See also Keesee v. State, Fla.App. 4th 1967, 204 So. 2d 925, in which a plea was accepted to the offense charged but a judgment was entered on a similar offense arising under a different chapter of the statutes. Our sister court vacated that judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Shanklin v. State, 369 So. 2d 620 (Fla. 2d DCA 1979)…ister court agreed that false imprisonment was not a lesser included offense but held that, nonetheless, the court’s failure to require an amendment of the information did not deprive it of jurisdiction in the case. The defendant in Burns v. State, 300 So. 2d 317 (Fla. 2d DCA 1974), was charged, under Section 811.11, Florida Statutes (1971), with larceny of a calf. He later pled guilty to grand larceny. On appeal he contended that he could not be adjudicated guilty of a crime with which he was not charged. T…
-
Causey v. State, 307 So. 2d 197 (Fla. 2d DCA 1975)…. 2d 641. While no objection was made to the giving of the charge, the error is fundamental. Johnson v. State, Fla.App.2d, 1969, 226 So. 2d 884. The cases of Lowman v. State, Fla.App. 4th, 1974, 303 So. 2d 667, and Burns v. State, Fla.App.2d, 1974, 300 So. 2d 317, cited by the State, involved pleas of nolo con-tendere and guilty and are inapplicable here. In essence, those pleas were equivalent to a mutually agreeable amendment of the accusatory writ. Appellant cannot be retried for breaking and entering wi…
-
Billiot v. State, 711 So. 2d 1277 (Fla. 1st DCA 1998)…1)(holding that “pleading to an offense acknowledging the existence of unpled essential elements, implicitly amends the information to include them.”). In Burns v. State, appellant was charged with larceny and entered a guilty plea to grand larceny. 300 So. 2d 317 (Fla. 2d DCA 1974). On appeal he asserted that he could not be adjudicated guilty of a crime with which he was not charged. The court affirmed the conviction on the basis that the plea and proceedings in open court constituted a mutually agreeable a…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Keesee v. State, 204 So. 2d 925 (Fla. 4th DCA 1967)