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170 So. 2d 599

Floyd v. State

District Court of Appeal of Florida

Decided November 13, 1964

District Court of Appeal of Florida · decided 1964-11-13

Cited by 2 later decisions — most recently October 1967

2 state decisions

Key passage — most relied on by later courts

““776.04 Attempts, generally. — Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration, or is intercepted or prevented in the execution of the same shall, when no express provision is made by law for the punishment of such attempt, be punished as follows: “(1) If the offense attempted to be committed is punishable with death, the person convicted of such attempt shall be punished by imprisonment in the state prison not exceeding ten years. “(2) If the offense attempted to be committed is punishable by imprisonment in the state prison for life, or for five years or more, the person convicted of such attempt shall be punished by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding one year. “(3) If the offense attempted to be committed is punishable by imprisonment in the state prison for a term of less than five years, or by imprisonment in the county jail, or by fine, the person convicted of such attempt shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding three hundred dollars. “In no case shall the punishment by imprisonment exceed one-half of the greatest punishment which might have been inflicted if the offense attempted had been committed.” (Italics supplied)”

quoted by 1 later decision, including State v. Fitz

““810.05 Breaking and entering with intent to commit a misdemeanor. — Whoever breaks and enters or enters without breaking any dwelling or store house, or any building, ship, vessel, or railroad car with intent to commit a misdemeanor, shall be punished by imprisonment in the state prison or county jail not exceeding five years, or by fine not exceeding five hundred dollars.” (Italics supplied)”

quoted by 1 later decision, including State v. Fitz

Good law ✅— No negative treatment on recordhow we know

Decided 1964-11-13

View the full empirical analysis of this case →

PER CURIAM.

¶1The appellant was convicted of Attempted Breaking and Entering with Intent to Commit a Misdemeanor, Possession of Bur-glarious Tools, and Trespass. He was sentenced to five years on the first two counts and thirty days on the third, the sentences to run concurrently.

¶2The appellant contends the evidence on all three counts was insufficient to sustain a conviction, but a perusal of the record shows this argument to be without merit.

¶3It is further alleged that a sentence of five years for Attempted Breaking and Entering with Intent to Commit a Misdemeanor is in excess of that authorized by law. Fla.Stat., Sec. 810.05, F.S.A. provides:

“Whoever breaks and enters or enters without breaking any dwelling or store house, or any building, ship, vessel, or railroad car with intent to commit a misdemeanor, shall be punished by imprisonment in the state prison or county jail not exceeding five years, or by fine not exceeding five hundred dollars.”

¶4And Fla.Stat., Sec. 776.04(3), F.S.A., provides, in part:

“ … In no case shall the punishment by imprisonment exceed one-half of. the greatest punishment which might have been inflicted if the offense attempted had been committed.”

¶5It is apparent from the statutes that the maxim sentence which could have been imposed for the attempted crime was two and one-half years. Therefore this case is remanded to the trial court in order that a proper sentence may be imposed.

¶6Affirmed in part and reversed in part.

SMITH, C. J., and SHANNON and ANDREWS, JJ., concur.
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