THE STATE OF FLORIDA, APPELLANT,
v.
EDWARD J. WARD, JR., APPELLEE
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The court held that insufficient proof of ownership of the burglarized structure is a material element that requires a new trial.
Edward J. Ward, Jr. was convicted of burglary. The information alleged ownership in 'Eagle Family Discount Stores, Inc.', but the evidence showed vari…
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PER CURIAM.
The State of Florida appeals an order granting defendant, Edward J. Ward, Jr., a new trial following, his conviction for burglary of a structure.
The State argues that where the subject burglary information against Ward alleged ownership in the “Eagle Family Discount Stores, Inc.” and the evidence at trial showed ownership in “Eagle Family Discount Stores” and all other elements of the crime were proved, such a variance when considered in light of Fla.R.Crim.P. 3.140(o) is not so material as to require a new trial.
The State has misconceived the issue involved in the instant case. The above variance was not the ground for entry of the appealed order granting the new trial. The basis for this order was the insufficiency of the proof of ownership of the burglarized structure.
The well established law is that the ownership of the building alleged to have been burglarized is one of the material and substantive elements which must be proved to sustain a burglary conviction. Smith v. State, 96 Fla. 30, 117 So. 377 (1928); Sifford v. State, 202 So. 2d 14 (Fla. 3d DCA 1967); Mitchell v. State, 317 So. 2d 465 (Fla. 4th DCA 1975). There is no evidence in the record which proved or tended to prove that the burglarized structure was owned by Eagle Family Discount Stores, Inc. or that it had any possessory interest therein. The proof with respect to the subject structure was descriptive only in that it was variously labeled the “Eagle Army-Navy Store”, “Eagle Department Store”, “Eagle Discount Store” and “Eagle Army-Navy”. Cf. Lopez v. State, 106 Fla. 361, 143 So. 303 (1932).
We, therefore, find that the trial court was eminently correct in granting Ward a new trial. See Sifford, supra.
Affirmed.
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I. v. Anderson, 356 So. 2d 382 (Fla. 3d DCA 1978)…tion and proven as alleged without fatal variance. Lopez v. State, 106 Fla. 361, 143 So. 303 (1932); Addison v. State, 95 Fla. 737, 116 So. 629 (1928); Davis v. State, 51 Fla. 37, 40 So. 179 (1906); Pells v. State, 20 Fla. 774 (1884); State v. Ward, 354 So. 2d 125 (Fla. 3d DCA 1978); Mitchell v. State, 317 So. 2d 465 (Fla. 4th DCA 1975); Sifford v. State, 202 So. 2d 14 (Fla. 3d DCA 1967); Haines v. State, 113 So. 2d 601 (Fla. 2d DCA 1959). It is said that requiring such allegation and proof as thus particular…
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A. L. v. State, 359 So. 2d 583 (Fla. 3d DCA 1978)…ny, as laid in the delinquency petition, is fatal to the state’s case. The trial court committed reversible error in denying the juvenile’s timely motion to dismiss the charges at trial. Smith v. State, 96 Fla. 30, 117 So. 377 (1928); State v. Ward, 354 So. 2d 125 (Fla.3d DCA 1978); Mitchell v. State, 317 So. 2d 465 (Fla.4th DCA 1975); Sifford v. State, 202 So. 2d 14 (Fla.3d DCA 1967); Haines v. State, 113 So. 2d 601 (Fla.2d DCA 1959). See also Anderson v. State, 356 So. 2d 382, 384-85 (Fla.3d DCA 1978). The…
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C.B. v. State, 519 So. 2d 686 (Fla. 3d DCA 1988)…h attempting to burglarize was woefully deficient to support the finding that the appellant had committed such attempted burglary. R.D. v. State, 426 So. 2d 1293 (Fla.3d DCA 1983); O’Bryan v. State, 359 So. 2d 545 (Fla. 4th DCA 1978); State v. Ward, 354 So. 2d 125 (Fla. 3d DCA 1978). We reverse that portion of the trial court’s order which found that the appellant had committed the offense of attempted burglary, and remand with directions to enter a judgment of acquittal. Reversed and remanded.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roy Smith alias Tom Green v. State, 96 Fla. 30 (Fla. 1928)
- Mitchell v. State, 317 So. 2d 465 (Fla. 4th DCA 1975)
- Arch McLeod and J. J. Hughes v. Johnson, 106 Fla. 307 (Fla. 1932)
- Lopez v. State, 106 Fla. 361 (Fla. 1932)
- Guyton v. State, 202 So. 2d 14 (Fla. 1st DCA 1967)
- Sifford v. State, 202 So. 2d 14 (Fla. 3d DCA 1967)