ROBERT LEE LAWRENCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Lee Lawrence was convicted of forgery and uttering a forged instrument after falsely entering a name on a Mastercharge credit card ticket. The First District Court of Appeal affirmed the convictions and sentences, rejecting arguments that attempt instructions should have been given, that sentencing should have been under the credit card statute instead, and that concurrent sentences violated the single transaction rule.
The court held that the trial court properly declined to instruct on attempts since Lawrence did not request such instructions and Florida law recognizes no offense of attempt to utter a forged instrument. The court further held that when conduct violates multiple statutes, the state has the right to prosecute under either statute and impose the sentence prescribed by the statute chosen. Finally, forgery and uttering a forged instrument are separate crimes requiring proof of distinct elements, so no single transaction rule violation occurred.
[1] A defendant is not entitled to jury instructions on attempt to commit a crime when no such instructions were requested and the given instructions were not objected to.
[2] There is no criminal offense in Florida for an attempt to utter a forged instrument.
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Join FLexlaw to unlock all legal intelligence“there is no offense nor crime under Florida law of attempt to utter a forged instrument”
Establishes that Lawrence was not entitled to jury instructions on attempt liability
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Join FLexlaw to unlock all legal intelligenceLawrence falsely entered the name of A. B. Hill, Jr., on a Mastercharge credit card ticket and uttered the forged ticket at Busch's Jewelry Store in P…
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McCORD, Judge.
Appellant was convicted of both counts of a two count indictment, the first count charging forgery in violation of § 831.01, Florida Statutes, and the second count charging uttering a forged instrument in violation of § 831.02, Florida Statutes. The evidence showed that appellant falsely entered the name of one A. B. Hill, Jr., on a Mastercharge credit card ticket and uttered same at Busch’s Jewelry Store in Panama City, Florida.
Appellant first contends that the court erred in not instructing the jury on attempts to commit the crimes charged. Such was not error. Appellant did not request instructions on attempt nor did he object to the instructions given by the trial court. See Mitchell v. State, Fla.App.(1st), 321 So. 2d 108 (1975). In addition we held in King v. State, Fla.App.(1st), 317 So. 2d 852 (1975), that there is no offense nor crime under Florida law of attempt to utter a forged instrument.
Appellant next contends that the court erred in sentencing him under the forgery and uttering statutes rather than under § 817.61, Florida Statutes (the state credit card crime act) which under the facts of this case would carry a lesser penalty. Our sister courts have divided on this question. The Fourth District Court of Appeal has held that where the conduct of a defendant violates two statutes, he may be sentenced only under the statute which carries the lesser penalty. Pastoria v. State, Fla.App.(4th), 312 So. 2d 808 (1975); Strada v. State, Fla.App.(4th), 267 So. 2d 702 (1972); and Lore v. State, Fla.App.(4th), 267 So. 2d 699 (1972). The Second District Court of Appeal in McConnell v. State, Fla.App.(2d), 298 So. 2d 550 (1974) disagreed with the Fourth District Court of Appeal and held that since the state has the right to prosecute under either statute, the sentence may be imposed for a term prescribed by the statute under which' the prosecution is maintained. See also State v. McCurdy, Fla.App.(2d), 257 So. 2d 92 (1972). The Third District Court of Appeal in Fayerweather v. State, Fla.App.(3d), 303 So. 2d 34 (1974), followed the rulings of the Second District in McConnell and McCurdy. We likewise adopt this view.
Appellant also contends that the two crimes of forgery and uttering a forged instrument were facets of the same transaction and the court therefore erred in sentencing appellant on each count. (He was given concurrent sentences.) We find no error. Forgery and uttering a forged instrument are two separate crimes committed in violation of two separate criminal statutes and requiring proof of separate and distinct elements as to each. There was no violation of the single transaction rule.
Affirmed.
RAWLS, Acting C. J., and SMITH, J., concur.
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Campbell v. State, 558 So. 2d 34 (Fla. 1st DCA 1989)…luded raising the issue on appeal). Moreover, the failure to request a particular jury instruction or to raise objections to the instructions as given will preclude a finding of error in this regard on the part of the trial court. Lawrence v. State, 330 So. 2d 160 (Fla. 1st DCA 1976); Mitchell v. State, 321 So. 2d 108 (Fla. 1st DCA 1975), cert. dismissed, 345 So. 2d 425 (Fla.1977). Accord Montoya v. State, 489 So. 2d 794 (Fla. 3d DCA), review denied, 496 So. 2d 143 (Fla.1986) (failure to request a jury instru…
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McMILLIAN v. State, 536 So. 2d 1076 (Fla. 4th DCA 1988)…[*1077] PER CURIAM. We affirm appellant’s conviction upon authority of Norwood v. Mayo, 74 So. 2d 370 (Fla.1954), Lawrence v. State, 330 So. 2d 160 (Fla. 1st DCA 1976), and Bronstein v. State, 355 So. 2d 817 (Fla. 3d DCA 1978). We reverse the trial court’s imposition of costs against appellant upon authority of Jenkins v. State, 444 So. 2d 947 (Fla.1984) and direct that such assessment be str…
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McMILLIAN v. State, 536 So. 2d 1077 (Fla. 4th DCA 1988)…PER CURIAM. We affirm appellant’s conviction upon authority of Norwood v. Mayo, 74 So. 2d 370 (Fla.1954), Lawrence v. State, 330 So. 2d 160 (Fla. 1st DCA 1976), and Bronstein v. State, 355 So. 2d 817 (Fla. 3d DCA 1978). We reverse the trial court’s imposition of costs against appellant upon authority of Jenkins v. State, 444 So. 2d 947 (Fla.1984) and direct that such assessment be str…
Authorities Cited
- King v. State, 317 So. 2d 852 (Fla. 1st DCA 1975)
- Mitchell v. State, 321 So. 2d 108 (Fla. 1st DCA 1975)
- Lore v. State, 267 So. 2d 699 (Fla. 4th DCA 1972)
- Strada v. State, 267 So. 2d 702 (Fla. 4th DCA 1972)
- State v. Benny Fred McCURDY, 257 So. 2d 92 (Fla. 2d DCA 1972)
- McCONNELL v. State, 298 So. 2d 550 (Fla. 2d DCA 1974)
- Fayerweather v. State, 303 So. 2d 34 (Fla. 3d DCA 1974)
- Pastoria v. State, 312 So. 2d 808 (Fla. 4th DCA 1975)