TYRE ANDRE JERMAINE ANGEL, 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.
Tyre Angel was convicted by jury of breaking and entering with intent to commit petit larceny and grand larceny. The appellate court reversed the grand larceny conviction due to inadmissible hearsay evidence regarding the calculator's value and vacated both sentences for failure to obtain a pre-sentence investigation as required by court rules.
The hearsay testimony about the calculator's value was inadmissible, requiring reversal of the grand larceny conviction. Both sentences must be vacated for the trial court's failure to obtain a pre-sentence investigation and recommendation in violation of Rule 3.710, F.R.Cr.P., absent evidence of a prior felony conviction.
[1] Testimony regarding the cost of an item based on a past invoice, without the invoice itself being present or the witness having personal knowledge of the purchase, consti…
[2] A conviction for breaking and entering with intent to commit a felony cannot stand if the only evidence of the value of the property taken is inadmissible hearsay.
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 manager's testimony as to what he had seen on the invoice was not the best evidence and was, therefore, inadmissible.”
Establishes the basis for reversing the grand larceny conviction—the hearsay testimony about the calculator's value violated the best evidence rule.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAngel was tried by jury on a two-count information: breaking and entering with intent to commit petit larceny (Count I) and breaking and entering with…
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 Breaking And Entering With Intent To Commit A Misdemeanor cases and more on FLexlaw
McCORD, Judge.
Appellant was tried by jury and found guilty on each count of a two count information. The first count charged breaking and entering with intent to commit a misdemeanor, to wit: petit larceny. The second count charged breaking and entering with intent to commit a felony, to wit: grand larceny. He appeals from the judgment and sentence on conviction on both counts.
We find the evidence sufficient to support the conviction on the first count.
As to the second count, appellant contends that the only evidence presented as to the value of the property taken (an electronic calculator) was inadmissible. We agree. The only evidence presented on this point was that of the manager of the housing project from which the calculator was taken. He testified that he had seen the invoice for the purchase of the calculator and it showed its cost to have been $362 when purchased about a year and a half previously; that he had not brought the invoice with him to trial. Appellant’s counsel objected to this testimony and moved to strike same on the ground that it was hearsay and that the bill of sale was the best evidence. The trial court overruled the objection and denied the motion to strike. The witness had not purchased the calculator himself and therefore could not testify as to its cost independent of the invoice. Also, not being the owner, he could not testify as to his opinion of its current value in the absence of sufficient qualifying testimony to support such an opinion. These facts distinguish this case from our recent opinion in Vickers v. State, Fla.App., 303 So. 2d 700, 1974. The manager’s testimony as to what he had seen on the invoice was not the best evidence and was, therefore, inadmissible. For this reason, we must reverse as to the second count.
Appellant also contends on this appeal that the sentences must be vacated for failure of the trial court to obtain a pre-sentence investigation and recommendation in violation of Rule 3.710, F.R.Cr.P., which provides in pertinent part as follows :
“In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the probation and parole commission for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing judge’1 (Emphasis supplied)
Although appellee’s attorney states in his brief that he had found that appellant does have a previous felony record, there is no showing of such felony record in the record in this case. The sentences must, therefore, be vacated. See Harden v. State, Fla.App. (1st), 290 So. 2d 551 and Mitchum v. State, Fla.App. (1st), 292 So. 2d 620.
Reversed and remanded with the following directions:
1. As to the sentence on Count I, the trial court may either vacate same and then obtain a presentence investigation and recommendation and consider them before resentencing or it may hold a hearing at which it must be established that appellant has previously been convicted of a felony.
2. As to Count II, the trial court shall vacate the judgment and sentence and adjudge appellant guilty of the lesser included offense of breaking and entering with intent to commit a misdemeanor, to wit: petit larceny; and then sentence for same after obtaining a presentence investigation and recommendations or after establishing at a hearing that appellant has previously been convicted of a felony. See Section 924.34, Florida Statutes; Davis v. State, Fla.App. (1st) 261 So. 2d 517; and Negron v. State, Fla., 306 So. 2d 104, 1974.
RAWLS, C. J., and JOHNSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Taylor v. State, 425 So. 2d 1191 (Fla. 1st DCA 1983)…d, 315 So. 2d 180 (Fla.1975), in which the court found a theft victim’s testimony that a stolen stereo was purchased for $225 one year prior to the date of theft as insufficient to prove the market value at the time of theft. And see Angel v. State, 305 So. 2d 283 (Fla. 1st DCA 1974), holding incompetent the testimony of a manager of a housing project from which property had been taken whose only estimate of current market value was based upon information on the face of an invoice made out more than a year be…
-
Comparato v. State, 419 So. 2d 1131 (Fla. 1st DCA 1982)…cause probation is a viable alternative with respect to one found guilty of possession of methaqualones, the trial court erred in sentencing Ortiz for that offense without a presentence investigation report and consideration of same. Angel v. State, 305 So. 2d 283 (Fla. 1st DCA 1974); Johnson v. State, 355 So. 2d 857 (Fla. 3rd DCA 1978). Section 775.083(l)(a-g), Florida Statutes, sets forth the maximum fine which may be imposed for designated crimes and non-criminal violations. Subdivision (f) permits imposi…
-
Beverly v. State, 330 So. 2d 527 (Fla. 1st DCA 1976)…ole and Probation Commission. Since the record does not show that appellant had a prior felony conviction, the sentencing violated Rule 3.710, F.R.Cr.P. See Mitchum v. State, Fla.App. (1st), 292 So. 2d 620 (1974), and Angel v. State, Fla.App. (1st), 305 So. 2d 283 (1974). There is no contention that there was a waiver of presentence investigation as was the case in Johns v. State, Fla.App. (1st), 330 So. 2d 526, opinion filed this date. We have considered the remaining point raised by appellant and find it t…
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
- Ozzie Joseph Negron and Teresa Negron v. State, 306 So. 2d 104 (Fla. 1974)
- Vickers v. State, 303 So. 2d 700 (Fla. 1st DCA 1974)
- Mitchum v. State, 292 So. 2d 620 (Fla. 1st DCA 1974)
- Harden v. State, 290 So. 2d 551 (Fla. 1st DCA 1974)
- Ivey Davis v. State, 261 So. 2d 517 (Fla. 1st DCA 1972)