LOUIS BUTLER O'NEAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Louis Butler O'Neal was convicted of entering a truck without breaking with intent to commit petit larceny, but was charged only with breaking and entering. The Florida appellate court held this violated his constitutional right to be informed of the charges and reversed the conviction as fundamental error.
The trial court erred in denying the motion to vacate. O'Neal could not be convicted of entering without breaking when he was charged only with breaking and entering. F.S. § 810.051 defines two distinct criminal acts, making this violation of the defendant's constitutional right to be informed of the charges fundamental error warranting relief under RCrP 3.850.
[1] A conviction for entering without breaking is improper when the defendant was charged solely with breaking and entering.
[2] A defendant cannot be convicted of a crime for which they were not charged, especially when the charged offense and the convicted offense are distinct statutory violation…
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Join FLexlaw to unlock all legal intelligence“Fla.Stat. 810.051 in effect defines two different criminal acts: breaking and entering with intent to commit any crime and entering without breaking with intent to injure the vehicle or property inside or to commit larceny.”
Establishes that the two offenses are distinct and separable, strengthening the principle that defendant could not be convicted of an offense not charged
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Join FLexlaw to unlock all legal intelligenceO'Neal was charged with breaking and entering a truck with intent to commit petit larceny under F.S. § 810.051. At jury trial, he was convicted of the…
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SCHEB, Judge.
This is an appeal from an order denying a motion to vacate and set aside a judgment and sentence under RCrP 3.850.
The appellant/defendant was charged with breaking and entering a truck with intent to commit a crime therein, to-wit: petit larceny. A jury trial resulted in a verdict of guilty of entering without breaking a truck with intent to commit a crime, to-wit: petit larceny, for which the appellant was sentenced on February 26, 1973. Appellant’s counsel, the Public Defender, filed an “Anders” brief with this court, contending that there were no meritorious grounds on appeal. See Anders v. California, 1967, 386 U.S. 783, 87 S.Ct. 1396, 18 L.Ed.2d 493. We affirmed the conviction. O’Neal v. State, Fla.App.2d 1973, 283 So. 2d 166, cert. den. Fla., 287 So. 2d 98.
The appellant now contends the trial court erred in denying his RCrP 3.850 motion in that he was found guilty of an offense for which he was not charged and one which was not a lesser included offense in the crime charged.
In Skov v. State, Fla.App.2d 1974, 292 So. 2d 64, cert. denied, Fla., 298 So. 2d 165, we held it was error to convict an accused under F.S. 810.05 of “entering without breaking” when he was charged with “breaking and entering.” In the case sub judice the appellant was charged under F. S. 810.051 with “breaking and entering . a truck . . . with intent to commit a crime therein, to-wit: petit larceny.” That statute provides:
Whoever breaks and enters any automobile, truck, trailer, semitrailer, aircraft, or house car with intent to commit any crime, and whoever enters without breaking any automobile, aircraft, truck, trailer, semitrailer, or house car with intent to injure the same or any property therein or to commit larceny, shall be guilty of a felony of the third degree,
Fla.Stat. 810.051 in effect defines two different criminal acts: breaking and entering with intent to commit any crime and entering without breaking with intent to injure the vehicle or property inside or to commit larceny. Thus the principle in Skov that the appellant could not be convicted of a crime not charged is even stronger under the statute presented here than it was under F.S. § 810.05.
When one state of facts is alleged in a criminal information it cannot be established by proof of the other. Long v. State, Fla.1957, 92 So. 2d 259. Since the state elected to charge the appellant only with breaking and entering, it could not convict him of entering without breaking. Skov v. State, supra-, Perkins v. Mayo, Fla.1957, 92 So. 2d 641.
The State and Federal Constitutions guarantee that an accused be informed of the nature and cause of the accusation against him, Aaron v. State, Fla. 1973, 284 So. 2d 673. We therefore hold the conviction of the appellant was a fundamental error. Johnson v. State, Fla. App.2d 1969, 226 So. 2d 884; Priester v. State, Fla.App. 4th 1974, 294 So. 2d 421; hence, relief is now properly available to appellant under RCrP 3.850.
The order denying appellant’s RCrP 3.-850 motion is reversed and the judgment and sentence is set aside and vacated.
HOBSON, A. C. J., and GRIMES, 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)…convicting him of a crime not charged constitutes fundamental error which is per se reversible. To support this claim, Ray relies on Minor v. State, 329 So. 2d 30 (Fla.2d DCA 1976); Haley v. State, 315 So. 2d 525 (Fla.2d DCA 1975); O’Neal v. State, 308 So. 2d 569 (Fla.2d DCA), overruled in Roberts v. State, 320 So. 2d 832 (Fla.2d DCA 1975); Causey v. State, 307 So. 2d 197 (Fla.2d DCA 1975); and Johnson v. State, 226 So. 2d 884 (Fla.2d DCA 1969). In these cases, the Second District found that erroneous instru…
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Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976)…h is fundamental. Haley v. State, Fla.App.2d, 1975, 315 So. 2d 525. Likewise, it has been held that fundamental error may be raised by collateral attack through a motion for post-conviction relief under RCrP 3.850. O’Neal v. State, Fla.App.2d, 1975, 308 So. 2d 569, overruled on other grounds in Roberts v. State, Fla.App.2d, 1975, 320 So. 2d 832. In Ashford v. State, supra, the Supreme Court cautioned that appellate courts should exercise discretion under the fundamental error doctrine very guardedly. General…
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Torrence v. State, 440 So. 2d 392 (Fla. 5th DCA 1983)…la. 504, 196 So. 302 (1940); Penny v. State, 140 Fla. 155, 191 So. 190 (1939); State v. Fields, 390 So. 2d 128 (Fla. 4th DCA 1980); Minor v. State, 329 So. 2d 30 (Fla. 2d DCA 1976); Haley v. State, 315 So. 2d 525 (Fla. 2d DCA 1975); O’Neal v. State, 308 So. 2d 569 (Fla. 2d DCA 1975), overruled in Roberts v. State, 320 So. 2d 832 (Fla. 2d DCA 1975); Causey v. State, 307 So. 2d 197 (Fla. 2d DCA 1975); Catanese v. State, 251 So. 2d 572 (Fla. 4th DCA 1971); Johnson v. State, 226 So. 2d 884 (Fla. 2d DCA 1969). On…
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 (12 total)
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Aaron v. State, 284 So. 2d 673 (Fla. 1973)
- Long v. State, 92 So. 2d 259 (Fla. 1957)
- Perkins v. Mayo, 92 So. 2d 641 (Fla. 1957)
- Johnson v. State, 226 So. 2d 884 (Fla. 2d DCA 1969)
- Priester v. State, 294 So. 2d 421 (Fla. 4th DCA 1974)
- Skov v. State, 292 So. 2d 64 (Fla. 2d DCA 1974)
- Murphy v. State, 283 So. 2d 166 (Fla. 2d DCA 1973)
- Lindsey v. State, 287 So. 2d 98 (Fla. 1973)
- O'Neal v. State, 287 So. 2d 98 (Fla. 1973)