MICHAEL JAMES MASSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Massey was convicted of attempted burglary of an unoccupied structure and sentenced to five years as a third-degree felony. The Florida District Court of Appeal affirmed, holding that attempted burglary constitutes a felony of the third degree under Florida law, rejecting the Attorney General's construction that would reduce it to a first-degree misdemeanor.
Attempted burglary of an unoccupied structure is a felony of the third degree, punishable by imprisonment not exceeding five years. The trial court's five-year sentence was proper under Section 775.082 Florida Statutes (1975).
[1] An attempt to commit any burglary, including third degree burglary, constitutes a third degree felony under Florida Statutes.
[2] The statutory provision punishing attempts to commit a felony of the third degree as a first degree misdemeanor does not apply to attempted burglaries, which are separate…
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Join FLexlaw to unlock all legal intelligence“If the offense attempted, solicited, or conspired to is a felony of the second degree or any burglary, the person convicted shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”
The statutory provision establishing that attempted burglary constitutes a felony of the third degree
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Join FLexlaw to unlock all legal intelligenceAppellant Massey pleaded guilty to attempted burglary of an unoccupied structure. The trial court imposed a five-year sentence pursuant to Section 775…
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BOYER, Chief Judge.
The issue to be here resolved is whether the offense of attempted burglary of an unoccupied structure is a felony of the third degree or a misdemeanor of the first degree.
Appellant urges that the trial court erred when imposing a five year sentence pursuant to Section 775.082(3)(d) Florida Statutes (1975) upon adjudicating appellant guilty of attempted burglary of an unoccupied structure in accordance with his plea of guilty.
Section 777.04(4)(c) Florida Statutes (1975) provides:
“If the offense attempted, solicited, or conspired to is a felony of the second degree or any burglary, the person convicted shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.”
The Attorney General of the State of Florida, in Opinion 077-4, attempted to construe and interpret several statutes therein cited, and concluded:
“It is my firm opinion that the phrase ‘ . . .or any burglary, . . . ’ as used in § 777.04(4)(c), F.S. can have reference only to any burglary of of [sic] the second degree and that the attempted burglary of an unoccupied structure of conveyance is a first degree misdemeanor if the offense is otherwise compatible with the requirements set forth in § 180.-02(3) [810.02(3)], F.S.
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“The phrase ‘ . . .or any burglary, . . . ’ in § 777.04(4)(c), F.S., must be construed to mean any burglary of the second degree. The burglary classified by § 810.02(3), F.S., as a third degree felony is reduced by the operation of § 777.04(d), F.S., to a first degree misdemeanor.”
We must disagree. The statute does not require construction. The legislature exercised its prerogative in passing the statute and may do the same, if it so elects, by amendment. It is within the province of the legislature to punish attempted burglaries more severely than other attempted third degree felonies. The statute clearly provides that if the offense attempted was “any burglary” then the person convicted shall be guilty of a felony of the third degree. Section 775.082 Florida Statutes (1975), entitled “Penalties” provides punishment “For a felony of the third degree, by a term of imprisonment not exceeding 5 years.”
The learned trial judge did not err. AFFIRMED.
McCORD, C. J., and RAWLS, J., concur.
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State of Fla. ex rel. Nathaniel D. Wash. & Anthony Adams v. Rivkind, 350 So. 2d 575 (Fla. 3d DCA 1977)…o the rule that the intention of the lawmakers must be given effect. George v. State, 203 So. 2d 173, 176 (Fla. 2d DCA 1967). We are supported in our result in this ease by a recent decision of the First District Court of Appeal in Massey v. State, 348 So. 2d 1244 (Fla. 1st DCA 1977), which held that attempted third degree burglary constitutes a third degree felony under section 777.04(4)(c), Florida Statutes (1975). Bownes v. State, 345 So. 2d 787 (Fla. 4th DCA 1977), does not reach a contrary result because…1 / 2
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State v. Wilcox, 351 So. 2d 89 (Fla. 2d DCA 1977)…6 So. 2d 541 (1942). Appellee was charged with attempted burglary of a dwelling.2 She pled nolo con-tendere to attempted burglary. Section 777.04(4)(c) provides that any attempt of any degree of burglary is a third-degree felony.3 Massey v. State, 348 So. 2d 1244 (Fla. 1st DCA 1977). Adjudication was withheld, and she was placed on unsupervised probation for one year. The state argues that the trial court erred in imposing unsupervised probation. Section 948.01(3), Florida Statutes (1975), authorizes the co…
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