STEVEN D. CAUSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A conviction for grand larceny is improper when it is not a lesser included offense of the charged crime and was not alleged in the accusatory pleading.
Appellant was charged with breaking and entering with intent to commit grand larceny and was subsequently convicted of grand larceny after the judge i…
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GRIMES, Judge.
Appellant was charged with breaking and entering with intent to commit grand larceny. At the trial, the judge instructed the jury that he could be convicted of several crimes, including the crime of grand larceny. The appellant was found guilty of grand larceny.
Grand larceny is not a lesser included offense of the crime of breaking and entering with intent to commit grand larceny. Davis v. State, Fla.App.2d, 1969, 226 So. 2d 257. The essential elements of the offense of grand larceny were not alleged in the information such that it could be said that grand larceny was included in the offense charged by virtue of the accusatory pleading. Brown v. State, Fla. 1968, 206 So. 2d 377. Consequently, appellant was improperly convicted for an offense with which he was not charged. Perkins v. Mayo, Fla.1957, 92 So. 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 with intent to commit grand larceny, since in legal effect he has already been acquitted of that crime. Johnson v. State, supra; Hampton v. State, 1924, 98 Tex.Cr.R. 161, 265 S.W. 164. But cf. Greene v. City of Gulfport, Fla.1958, 103 So. 2d 115. However, nothing would prevent the State from seeking to convict appellant of grand larceny, subject to the requirement of bringing him to trial within, ninety days pursuant to Rule 3.191(g), RCrP. Goodwin v. State, 1946, 157 Fla. 751, 26 So. 2d 898.
Reversed.
HOBSON, Acting C. J., and BOARD-MAN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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RAY v. State, 403 So. 2d 956 (Fla. 1981)…McDONALD, Justice. We have accepted jurisdiction to resolve conflict created by Ray v. State, 374 So. 2d 1002 (Fla.2d DCA 1979), and Causey v. State, 307 So. 2d 197 (Fla.2d DCA 1975). Art. V, § 3(b)(3), Fla. Const. (1972). The issue to be determined is whether a defendant convicted of a crime for which he was not charged, but which was submitted to the jury as a lesser included offense when in fact it was not,…1 / 2
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State v. DYE, 346 So. 2d 538 (Fla. 1977)…(Hatchett, J., dissenting). Smith v. State, 324 So. 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, com…
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Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)…n. In a dissent Judge Grimes pointed cogently to the fact that the charging document did not allege one element of the lewd act offense (that the victim was under the age of fourteen years) and that this was fundamental error citing Causey v. State, 307 So. 2d 197 (Fla. 2d DCA 1975). Ray v. State, 374 So. 2d 1002 (Fla. 2d DCA 1979). On conflict certiorari the Florida Supreme Court quashed Ray’s conviction, and approved Causey and disapproved the DCA Ray case. Causey held that if the essential elements of an o…1 / 2
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brown v. State, 206 So. 2d 377 (Fla. 1968)
- Goodwin v. State, 157 Fla. 751 (Fla. 1946)
- Perkins v. Mayo, 92 So. 2d 641 (Fla. 1957)
- Davis v. State, 226 So. 2d 257 (Fla. 2d DCA 1969)
- Johnson v. State, 226 So. 2d 884 (Fla. 2d DCA 1969)
- Greene v. City OF Gulfport, 103 So. 2d 115 (Fla. 1958)
- Burns v. State, 300 So. 2d 317 (Fla. 2d DCA 1974)
- Lowman v. State, 303 So. 2d 667 (Fla. 4th DCA 1974)