DAVID CARLTON HENRY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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David Carlton Henry was convicted of unlawful possession of dynamite without a license in violation of Florida Statutes §552.101 and §552.22. On appeal, he challenged the trial court's refusal to instruct the jury on attempted unlawful possession of dynamite, but the court affirmed his conviction, holding that no such crime exists under Florida law.
The trial court did not err in refusing the attempted possession instruction. There is no crime of attempt to intend to use explosives for destruction of life, limb, or property under Florida law, because the licensing statute itself raises a prima facie presumption of the requisite intent upon proof of unlicensed possession.
[1] A trial court is not required to instruct the jury on attempted unlawful possession of dynamite when the charged offense is unlawful possession of dynamite under a licens…
[2] Possession of dynamite without a license raises a prima facie presumption of intent to use the same for destruction of life, limb, or property.
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Join FLexlaw to unlock all legal intelligence“If dynamite is possessed without a license, it raises a prima facie presumption of "intent to use the same for destruction of life, limb, or property".”
Establishes that the statutory scheme creates an inherent intent element upon unlicensed possession.
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Join FLexlaw to unlock all legal intelligenceHenry and William Shriver were charged with unlawfully and feloniously possessing dynamite and primer cord without a license between June 19, 1975, an…
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PER CURIAM.
Appellant, defendant in the trial court was informed against as follows:
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“* * * WILLIAM SHRIVER AND DAVID CARLTON HENRY, between the 19th day of June, 1975, and the 14th day of July, 1975, in the County and State aforesaid, did unlawfully, knowingly and feloniously have in their possession certain explosives, to-wit: DYNAMITE AND PRIMER CORD, without having a license or permit therefor, in violation of 552.101 and 552.22 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.”
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At the time of the jury instruction conference, defense counsel requested a charge on attempted unlawful possession of dynamite; the trial judge refused. After conviction, the appellant prosecuted this appeal and has urged error in this ruling upon the authority of McClam v. State, 288 So. 2d 285 (Fla. 4th D.C.A. 1974); Silvestri v. State, 332 So. 2d 351 (Fla. 4th D.C.A. 1976). We affirm.
The cases of the Fourth District Court of Appeal are distinguishable either under the facts, because of the nature of the crime charged in the cited cases compared to the crime charged in the instant case, or we decline to follow them and will be in conflict therewith.
The crime charged in the instant action is a licensing statute relating to the possession of dynamite. If dynamite is possessed without a license, it raises a prima facie presumption of “intent to use the same for destruction of life, limb, or property”. In Henderson v. State, 55 So. 2d 110 (Fla.1951), “intent” has been defined as follows:
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“ * * * In the case of Bunch v. State, 58 Fla. 9, 50 So. 534, this Court settled the question that for the purpose of a similar verdict the words ‘attempt’ and ‘intent’ were synonymous. * * * ”
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There is no crime of attempt to intend to use the same for destruction of life, limb, or property. Compare King v. State, 317 So. 2d 852 (Fla. 1st D.C.A. 1975).
The other points upon which error is urged have been examined and no merit is found to them. Fitzgerald v. State, 227 So. 2d 45 (Fla. 3rd D.C.A. 1969); Ford v. State, 251 So. 2d 562 (Fla. 3rd D.C.A. 1971); Songer v. State, 322 So. 2d 481 (Fla.1975); Fernandez v. State, 328 So. 2d 508 (Fla. 3rd D.C.A. 1976).
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Thomas, 362 So. 2d 1348 (Fla. 1978)…4th DCA 1976); Lightfoot v. State, 331 So. 2d 388 (Fla. 2d DCA 1976); Parker v. State, 330 So. 2d 148 (Fla. 2d DCA 1976); Lomax v. State, 322 So. 2d 650 (Fla. 2d DCA 1975). . See Milazzo v. State, 359 So. 2d 923 (Fla. 3d DCA 1978); Henry v. State, 344 So. 2d 1311 (Fla. 3d DCA 1977); Silvestri v. State, supra; Lightfoot v. State, supra. . State v. Abreau, 363 So. 2d 1063 (Fla.1978), recognizes that such error may be harmless if the “attempt” offense is “two steps removed” from the crime of which the defendan…
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DE LA Cova v. State, 355 So. 2d 1227 (Fla. 3d DCA 1978)…thorized punishments — one for possession with intent to harm and the other for simple unlawful possession. This court has pointed out that unlawful possession alone raises a presumption of possession with intent to harm. See [*1234] Henry v. State, 344 So. 2d 1311 (Fla. 3d DCA 1977). It is clear that this is a rebut-table presumption. Nevertheless, because there is only one crime, there can be only one sentence. Because, in this case, the evidence amply supports a finding of intent to harm property, the sente…
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Milazzo v. State, 359 So. 2d 923 (Fla. 3d DCA 1978)…a promise of money or something of value”. The Legislature did not intend to separately punish an “attempt to attempt to transfer for consideration”. There can be no crime of attempt to attempt to do something. King v. State, supra; Henry v. State, 344 So. 2d 1311 (Fla.3d DCA 1977). Notwithstanding its holding in Lightfoot v. State, supra, the Second District Court of Appeal recognized the foregoing rationale in the ease of State v. Vinson, 298 So. 2d 505 (Fla.2d DCA 1974), wherein in dealing with the questi…
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
- Songer v. State, 322 So. 2d 481 (Fla. 1975)
- Silvestri v. State, 332 So. 2d 351 (Fla. 4th DCA 1976)
- Fitzgerald v. State, 227 So. 2d 45 (Fla. 3d DCA 1969)
- King v. State, 317 So. 2d 852 (Fla. 1st DCA 1975)
- Fernandez v. State, 328 So. 2d 508 (Fla. 3d DCA 1976)
- Bunch v. State, 58 Fla. 9 (Fla. 1909)
- Ford v. State, 251 So. 2d 562 (Fla. 3d DCA 1971)
- McCLAM v. State, 288 So. 2d 285 (Fla. 4th DCA 1974)