DOUGLAS GENE HALEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE; PATRICK WILLIAM O'SHEA, APPELLANT, V. STATE OF FLORIDA, APPELLEE
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Two appellants were charged with robbery but convicted of grand larceny, despite the charging informations failing to allege the value of the stolen property. The court reversed, holding that grand larceny cannot be a lesser included offense of robbery without the accusatory pleading alleging the value element, and remanded for entry of petit larceny convictions.
Grand larceny cannot be charged or result in conviction as a lesser included offense of robbery unless the accusatory pleading alleges that the stolen property's value was $100 or more. Since the informations contained no allegation of value, the convictions for grand larceny must be reversed and remanded for entry of petit larceny convictions, which require no value allegation.
[1] A conviction for grand larceny cannot be sustained when the accusatory pleading fails to allege the value of the stolen property.
[2] Larceny is a necessarily included offense in the crime of robbery.
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Join FLexlaw to unlock all legal intelligence“The accusatory pleading must apprise the defendant of all offenses of which he may be convicted.”
Establishes the foundational requirement that charging documents must adequately inform defendants of all possible convictions.
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Join FLexlaw to unlock all legal intelligenceAppellants Haley and O'Shea were charged by informations with robbery. At trial, evidence showed the value of the stolen property exceeded $100. The j…
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PER CURIAM.
Appellants were charged by informations with robbery1 and convicted of grand larceny. Since the informations contained no allegation of the value of the stolen property, we reverse and remand for entry of judgments of petit larceny.
At trial, the evidence showed that the value of the property taken was over $100. The judge instructed the jury on robbery and the lesser included offenses of grand larceny and petit larceny. Immediately after the jury retired, the appellants objected to the charge of grand larceny.
In Brown v. State, Fla.1968, 206 So. 2d 377, lesser offenses were divided into four categories:
(1) Crimes divisible into degrees;
(2) Attempts to commit offenses;
(3) Offenses necessarily included in the offense charged; and (4) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
In State v. Anderson, Fla.1972, 270 So. 2d 353, the court held that an instruction on a category 4) offense should not be given unless the accusatory pleading alleges all the elements of the lesser offense:
The accusatory pleading must apprise the defendant of all offenses of which he may be convicted. This simply means that when the State makes a charge, ex parte though it may be, it is asserting that the defendant is guilty and may be convicted of that offense, all degrees thereunder when the offense is divided in degrees, the attempt to commit ,the offense, and any lesser offense which is an essential ingredient of the major crime charged.
In addition, it means that he may he convicted of any lesser offense, which, although not an essential ingredient of the major crime, is spelled out in the accusatory pleading in that it alleged all of the elements of the lesser offense and the proof at trial supports the charge. . (Emphasis supplied.)
Larceny is a necessarily included offense in the crime of robbery. Brown v. State, supra. However, grand larceny contains an element not present in the offense of robbery: that the value of the property stolen was one hundred dollars or more. Grand larceny is not necessarily included in the offense or robbery, and Anderson requires that the accusatory pleading allege this additional element of value in order for a conviction of grand larceny to be sustained.
In accordance with Anderson, supra, Florida Standard Jury Instructions in Criminal Cases, Robbery, § 2.06 includes the following language:
Degrees of Larceny
If, from the evidence, you find beyond a reasonable doubt that the defendant did steal, take and carry away the property described from the person alleged in the information (indictment) but are not convinced beyond a reasonable doubt that the taking was accomplished by force, violence, assault or putting in fear you should find the defendant guilty of larceny, and a. in this case the information (indictment) does not allege the value of the property to be one hundred dollars or more, so the verdict should find the defendant guilty of petit larceny.
The State argues that appellants waived this issue because the record fails to reveal a timely objection to the jury instructions. This case does not merely involve erroneous instructions. The defendants were convicted of a crime not charged in the informations. This is fundamental error. O’Neal v. State, Fla.App.2d 1975, 308 So. 2d 569; Johnson v. State, Fla.App.2d 1969, 226 So. 2d 884; Priester v. State, Fla.App. 4th 1974, 294 So. 2d 421.
Although the convictions of grand larceny cannot be sustained, petit larceny is an offense whose elements were alleged in the accusatory pleadings.
Accordingly, we reverse the convictions and sentences for grand larceny and remand with directions that judgments of conviction be entered against both appellants for petit larceny. Cf. Negron v. State, Fla.1975, 306 So. 2d 104.
HOBSON, Acting C. J., and SCHEB, J., concur. BOARDMAN, J., dissents with opinion.
. Douglas Gene Haley and Patrick William O’Shea “did unlawfully and feloniously, by force, violence, assault or putting in fear, rob, steal and take away from the person or custody of PHILLIP Y. NEUHFER, and/or JAMES HARDING, certain personal property, to-wit: UNITED STATES CURRENCY, the property of GENERAL HOST CORPORATION, Contrary to the statute in such case made and provided and against the people and dignity of the State of Florida.”
BOARDMAN, Judge
(dissenting).
I do not disagree with the cases cited in the majority opinion. With deference, I find that they are inapplicable in the instant case.
It is my view that the offense of grand larceny, under the factual circumstances presented here, falls within the fourth category under Brown v. State, Fla.1968, 206 So. 2d 377. Therefore, it was proper for the trial court to have instructed the jury on grand larceny. The evidence adduced at trial was overwhelming to prove that the value of the property taken was in excess of the statutory threshold. I do not believe the complained of instruction, coupled with the verdict, constitutes error, let alone reversible error. I would have affirmed the trial court and therefore, I respectfully dissent.
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RAY v. State, 403 So. 2d 956 (Fla. 1981)…he crime for which he was charged. Ray claims that 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 cas…
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State v. DYE, 346 So. 2d 538 (Fla. 1977)…4 (1958). No essential element should be left to inference. Corn v. State, 332 So. 2d 4, 12 (Fla.1976) (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, th…
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Clark v. State, 336 So. 2d 468 (Fla. 2d DCA 1976)…oes to the foundation of the case or goes to the merits of the cause of action.” See also Ashford v. State, Fla.1973, 274 So. 2d 517. No objection need be made to preserve an attack on an error which 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, Fl…
Previewing 3 of 20 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)
- Ozzie Joseph Negron and Teresa Negron v. State, 306 So. 2d 104 (Fla. 1974)
- Bruno v. State, 270 So. 2d 353 (Fla. 1972)
- State v. Anderson, 270 So. 2d 353 (Fla. 1972)
- Johnson v. State, 226 So. 2d 884 (Fla. 2d DCA 1969)
- O'Neal v. State, 308 So. 2d 569 (Fla. 2d DCA 1975)
- Priester v. State, 294 So. 2d 421 (Fla. 4th DCA 1974)