CHARLIE KELSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charlie Kelsey was convicted by jury of breaking and entering with intent to commit a felony and grand larceny, sentenced to consecutive terms. The appellate court reversed the sentence on the grand larceny count, finding that under binding precedent the two crimes constitute separate transactions and cannot support consecutive sentences.
The court held that while breaking and entering and grand larceny are separate crimes that can be committed independently of each other, under binding precedent from McHaney v. State, consecutive sentences on these counts violate the single transaction rule and must be reversed. The court also held that the trial court's failure to instruct the jury on penalties was not error because the rule, though mandatory in language, has been held by the Supreme Court to be merely directory.
[1] Breaking and entering with intent to commit a felony and grand larceny are separate offenses and transactions, allowing for consecutive sentences.
[2] A trial court's refusal to instruct the jury on the penalties for the offense is not error, as the rule requiring such instruction is directory, not mandatory.
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Join FLexlaw to unlock all legal intelligence“The 'transaction' is concluded. Grand larceny is quite another matter. That crime may be committed after one has broken and entered or it may be accomplished without a prior breaking and entering. The two are separate transactions and are separate crimes.”
Establishes that breaking and entering and grand larceny constitute separate transactions despite potentially being part of the same factual episode
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Join FLexlaw to unlock all legal intelligenceKelsey was charged with breaking and entering a dwelling house with intent to commit a felony (Count I) and grand larceny (Count II). A jury found him…
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BOYER, Judge.
Appellant, defendant in the trial court, was charged by information with breaking and entering of a dwelling house with the intent to commit a felony therein, and, in a second count, with grand larceny. A jury of his peers found him guilty on both counts. The trial court sentenced defendant to eight years on Count I and three years on Count II, said sentences to run consecutively. Several points are presented on this appeal.
First, appellant urges that the trial court erred in imposing two consecutive sentences on the two counts of the information, thereby violating the “single transaction rule”, citing this Court’s opinion in McHaney v. State, Fla.App.lst 1974, 295 So. 2d 355. As stated in that case, the key element of breaking and entering with intent to commit a felony is the intent. It matters not whether the culprit actually commits a felony after the breaking and entering. If he broke and entered with the requisite intent, all of which is a matter of proof, then the crime was committed. The “transaction” is concluded. Grand larceny is quite another matter. That crime may be committed after one has broken and entered or it may be accomplished without a prior breaking and entering. The two are separate transactions and are separate crimes. Each can be committed in the absence of the other. They are not therefore “the same criminal transaction”. Being separate crimes and separate transactions, sentences on each, following convictions on both offenses, are permissible. The record in the case sub judice reveals sufficient evidence to sustain the jury’s conviction of defendant for the crime of breaking and entering of a dwelling house with the intent to commit a felony therein and sufficient evidence to sustain their verdict of guilty on the offense of committing the crime of grand larceny. The foregoing expresses the convictions and opinion of the writer hereof and is in accordance with Steele v. Mayo, Sup.Ct.Fla.1954, 72 So. 2d 386 and Estevez v. State, Fla.App.3rd 1974, 290 So. 2d 138. However, the above views are in direct conflict with Davis v. State, Fla.App.2nd 1973, 277 So. 2d 300 and Edmond v. State, Fla.App.2d 1973, 280 So. 2d 449 as well as McHaney v. State, supra. In asmuch as the facts sub judice are not reasonably distinguishable from those in Mc-Haney v. State, supra, the writer of this opinion in the interest of stare decisis concurs with the latter opinion of this court unless and until the Supreme Court holds to the contrary. Therefore, it is apparent that in keeping with McHaney we must reverse with instructions that appellant’s sentence for grand larceny be vacated.
Appellant next urges that the trial court erred in refusing to instruct the jury on penalties as required by Rule 3.390(a) RCrP. That rule provides as follows:
“The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.”
Although the wording of the rule, adopted by the Supreme Court, is clearly mandatory (no stronger word than “must” is available in the English language) nevertheless that Court has held that the rule does not mean what it says and that it is merely directory. (Johnson v. State, Sup.Ct.Fla.1974, 308 So. 2d 38; opinion filed December 11, 1974.) It follows therefore that the refusal of the trial court to follow the rule was not error. We find the other points raised by appellant to be without merit.
The sentence of three years on Count II of the information (grand larceny) is hereby vacated and set aside: In all other respects the judgment and sentence appealed are affirmed.
Reversed in part and affirmed in part.
RAWLS, C. J., specially concurring.
McCORD, J., concurs in judgment.
RAWLS, Chief Judge
(specially concurring).
I am in full accord with this Court’s decision in McHaney v. State, 295 So. 2d 355 (1 Fla.App. 1974), and thus do not concur in the reservations expressed by Judge Boyer as to the opinion of this Court in that case. I do concur, however, in the remainder of the opinion and the judgment entered.
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Citator
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Tascano v. State, 393 So. 2d 540 (Fla. 1980)…the accused is then on trial. The courts interpreted this rule as being directory and not mandatory with regard to the penalty instructions. Huckeba v. State, 322 So. 2d 29 (Fla. 1975); Johnson v. State, 308 So. 2d 38 (Fla. 1974); Kelsey v. State, 317 So. 2d 445 (Fla. 1st DCA 1975). The rule as amended February 10 effective July 1, 1977, reads as follows: The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and [*541] upon request of either the S…
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State v. Terry, 336 So. 2d 65 (Fla. 1976)…(Fla.App. 2nd 1975); Beamon v. State, 314 So. 2d 604 (Fla.App. 3rd 1975); Wheat v. State, 315 So. 2d 203 (Fla.App. 1st 1975); Roper v. State, 315 So. 2d 206 (Fla.App. 1st 1975); Howard v. State, 316 So. 2d 654 (Fla. App. 3rd 1975); Kelsey v. State, 317 So. 2d 445 (Fla.App. 1st 1975) and Davis v. State, 319 So. 2d 611 (Fla.App. 3rd 1975). . E. g., Brown v. State, 245 So. 2d 68 (Fla.1971); State v. Washington, 268 So. 2d 901 (Fla.1972); State v. Anderson, 270 So. 2d 353 (Fla.1972); Rayner v. State, 273 So. 2d…
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Tascano v. State, 363 So. 2d 405 (Fla. 1st DCA 1978)…2d 134 (Fla.1975); Winston v. State, 308 So. 2d 40 (Fla.1975); Golson v. State, 353 So. 2d 195 (Fla. 3d D.C.A. 1977); MacMainor v. State, 328 So. 2d 264 (Fla. 1st D.C.A. 1976); Dowis v. State, 326 So. 2d 196 (Fla. 4th D.C.A. 1976); Kelsey v. State, 317 So. 2d 445 (Fla. 1st D.C.A. 1975); Howard v. State, 316 So. 2d 654 (Fla. 3d D.C.A. 1975); Wheat v. State, 315 So. 2d 203 (Fla. 1st D.C.A. 1975); Roper v. State, 315 So. 2d 206 (Fla. 1st D.C.A. 1975); Beamon v. State, 314 So. 2d 604 (Fla. 3d D.C.A. 1975); Sweet…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. State, 308 So. 2d 38 (Fla. 1974)
- Ellis Edmond v. State, 280 So. 2d 449 (Fla. 2d DCA 1973)
- Steele v. Mayo, 72 So. 2d 386 (Fla. 1954)
- Davis v. State, 277 So. 2d 300 (Fla. 2d DCA 1973)
- Ciro Estevez v. State, 290 So. 2d 138 (Fla. 3d DCA 1974)
- McHANEY v. State, 295 So. 2d 355 (Fla. 1st DCA 1974)