RAYMOND MOORE AND LARRY MOORE, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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The court held that evidence of similar crimes was admissible to show a common scheme or design and that recidivist sentencing procedures do not always require strict adherence to former § 775.11 if the prior conviction is known to the court.
[1] Evidence of similar crimes is admissible to show a common scheme or design, not merely to prove bad character or propensity to commit crime.
[2] Evidence of the use of specific tools to commit similar offenses is relevant to the charge of possession of burglarious tools.
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Join FLexlaw to unlock all legal intelligenceAppellants were convicted of possession of burglarious tools and breaking and entering a vending machine. Evidence of similar crimes committed on prio…
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SMITH, Judge.
Raymond and Larry Moore appeal from judgments convicting them in the Circuit Court of Santa Rosa County of possession of burglarious tools on September 16 and 17, 1974, and breaking and entering a coin operated vending machine at the Exxon station at Navarre on September 17.
Appellants assert that the evidence of other similar crimes committed by them and by the chief prosecution witness tended only to show bad character or propensity to commit crime and was therefore inadmissible. The evidence in question, admitted with appropriate instructions to the jury concerning its purpose, was that the three men, on the might before they pried open the vending machine at Navarre Exxon, did the same thing at a Pensacola Gulf station and were later seen, siphoning gas from a parked vehicle, with the former contents of the vending machine visible in the backseat of their car. Complaint is made also of evidence admitted to show that on the night they broke the vending machine at Navarre Exxon, they had attempted to siphon gasoline and were about to break another vending machine at yet another filling station in Santa Rosa County when they were arrested.
The evidence in question was properly admitted. It tended to show a common scheme or design whereby appellants and an accomplice acted together in a similar way to commit offenses similar to those for which appellants now are convicted. Evidence of appellants’ use of a tire tool and crowbar to break into a vending machine and to open a gas tank cap was relevant, too, to the charge that appellants possessed burglarious tools in violation of § 810.06, F.S.1973. Furthermore, since appellants and their accomplice were seen together and in possession of stolen merchandise on the night of September 16, the witness who saw them corroborated the accomplice’s testimony concerning the criminal activities of both nights and so tended to meet the alibi defense offered by appellants. See Williams v. State, 110 So. 2d 654 (Fla.1959), cert. den. 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); Griffin v. State, 124 So. 2d 38 (Fla.App. 1st, 1960), explained in Franklin v. State, 229 So. 2d 892, 894-95 (Fla.App. 3rd, 1970). Contrast Dinkens v. State, 291 So. 2d 122, 125 (Fla.App. 2nd, 1974).
Appellant Larry Moore asserts that the trial court erred in sentencing him for possession of burglarious tools to a term of imprisonment for five years, of which the final three years were suspended, and a term of probation for five years thereafter. The State agrees that the sentence is excessive to the extent of the final two years of probation. Secs. 810.06, 775.082, F.S. 1973, 948.04, F.S.1973 (1974 Supp.), as amended by § 10, ch. 74 — 112, Fla.Laws. In order to conform it to the requirements of law, the sentence of Larry Moore will be vacated to the extent of the final two years of the five-year probationary term.
Appellant Raymond Moore asserts that the trial court erroneously sentenced him as a recidivist pursuant to § 775.084, F.S.1973, without complying with the procedures specified in § 775.11, which was in effect at the time of these sentences. See the repealing ch. 74-383, as amended by ch. 75-24, Fla.Laws, effective October 1, 1975. With deference to the contrary decision of the District Court of Appeal, Second District, in Wright v. State, 291 So. 2d 118 (Fla.App. 2nd, 1974), we conceive that the former strictures of § 775.11, requiring the full panoply of information, arraignment and trial on the issue of identity, do not apply when the fact of the recidivist’s prior conviction of a felony appears to the sentencing judge before or at the time of the adjudication and sentence for the subsequent offense. Sec. 775.11(1) was designed to afford an opportunity for the State to seek the extended term of commitment provided for by § 775.084 when, through oversight, the fact of a previous conviction did not appear or become known to the court or prosecutor until “after sentence or conviction” for the subsequent offense. The repeal of § 775.-11, F.S.1973, effective October 1, 1975, evidences legislative intent that the provisions of § 775.084, which continues in effect, be utilized in accordance with due process of law independent of former § 775.11. In our recent decision in Andrews v. State, 316 So. 2d 296 (Fla.App. 1st, 1975), we remanded a case for resentencing in somewhat similar circumstances. There, how ever, the State confessed error in the sentence under review, and so we did not have the opportunity to consider the question here decided.
The judgment and sentence of Raymond Moore is affirmed. The judgment and sentence of Larry Moore is affirmed as modified.
BOYER, C. J., and MILLS, J., concur.
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State v. Holmes, 360 So. 2d 380 (Fla. 1978)…t held that both periods combined must be within the maximum period of incarceration allowed by statute for the particular offense charged. That decision is in accord with the decisions of the other district courts on this issue. See Moore v. State, 324 So. 2d 690 (Fla. 1st DCA 1976); Magnin v. State, 334 So. 2d 638 (Fla. 2nd DCA 1976); Watts v. State, 328 So. 2d 223 (Fla. 2nd DCA 1976); Heatherly v. State, 343 So. 2d 54 (Fla. 4th DCA 1977); McNulty v. State, 339 So. 2d 1155 (Fla. 1st DCA 1976), and Troiano v…
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Heatherly v. State, 343 So. 2d 54 (Fla. 4th DCA 1977)…by worthless check. The amount of time which the court could have imprisoned Appellant under the law is five years. Our recent opinion of Holmes et al. v. State, Fla.App., 343 So. 2d 632, opinion issued February 11, 1977, which cites Moore v. State, 324 So. 2d 690 (Fla.1st DCA 1976); Watts v. State, 328 So. 2d 223 (Fla.2d DCA 1976); Magnin v. State, 334 So. 2d 638 (Fla.2d DCA 1976); State v. Jones, 327 So. 2d 18 (Fla.1976) indicates this is clearly an excessive sentence. The trial court made as a condition o…
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Holmes v. State, 343 So. 2d 632 (Fla. 4th DCA 1977)…ntence was thereby excessive by two years. It is now uniformly held that although a trial judge is permitted to enter a split sentence, the combined period cannot exceed the maximum period of time provided for that particular crime. Moore v. State, 324 So. 2d 690 (Fla. 1st DCA 1976); Watts v. State, 328 So. 2d 223 (Fla.2d DCA 1976); Magnin v. State, 334 So. 2d 638 (Fla.2d DCA 1976). Also see State v. Jones, 327 So. 2d 18 (Fla.1976). For the foregoing reasons we modify the sentences appealed from in the foll…
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
- Williams v. State, 110 So. 2d 654 (Fla. 1959)
- Williams v. Florida, 361 U.S. 847 (U.S. 1959)
- White v. Illinois, 361 U.S. 847 (U.S. 1959)
- Peel v. State, 229 So. 2d 892 (Fla. 2d DCA 1970)
- Griffin v. State, 124 So. 2d 38 (Fla. 1st DCA 1960)
- Wright v. State, 291 So. 2d 118 (Fla. 2d DCA 1974)
- Talley v. State, 291 So. 2d 122 (Fla. 2d DCA 1974)
- Andrews v. State, 316 So. 2d 296 (Fla. 1st DCA 1975)