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274 So. 2d 6

Docket No. 72-581.

White v. State

Ernest WHITE, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided February 28, 1973.

District Court of Appeal of Florida · decided 1973-02-28

Cited by 10 later decisions — most recently December 1999

10 state decisions

Key passage — most relied on by later courts

“"There is an additional reason to consider that breaking and entering with intent to commit grand larceny and grand larceny should not be cumulatively punishable. Breaking and entering with intent to commit a misdemeanor is punishable by imprisonment for five years, while if the intent be felonious, the penalty is fifteen. In Edmond's case the grand larceny was duly proved, and served as evidence of the intent with which the more serious burglary was charged. Having thereby tripled his punishment, are we to assume that the Legislature also intended to add five years because the larceny was completed? Would we suppose a maximum of 17 1/2 years if the police had arrived during an attempt? ...... "In truth, the multiplication of offenses is a great boon to prosecutors who may find some element missing in their case yet prosecute some cognate offense successfully. The rule limiting the punishment to that prescribed for the gravest offense comprehended within the factual matrix is a small price to pay for this kind of flexibility. If the rule were not fairly applied, relatively minor offenses might be added together to impose excessive sentences. If the legislature wishes to increase the penalties for burglary or larceny, it may do so. Until it does, we assume that by making breaking and entering with the intent to commit grand larceny three times more serious than breaking and entering with intent to commit petit larceny, the intent was to acknowledge the single transaction rule ”

quoted by 1 later decision, including 313 So. 2d 692 - Estevez v. State

Relies on Todd v. State · 243 So. 2d 174 - State v. Conrad · 248 So. 2d 526 - Rumph v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1973-02-28

View the full empirical analysis of this case →

¶1*7 Charles W. Willits, Orlando, for appellant.

¶2Robert L. Shevin, Atty. Gen., Tallahassee, and Andrew I. Friedrich, Asst. Atty. Gen., West Palm Beach, for appellee.

¶3OWEN, Judge.

¶4Appellant was charged in a two count information with (1) breaking and entering with intent to commit a felony, to-wit: grand larceny, and (2) grand larceny. By jury verdict he was found guilty of the first count, and also guilty of petit larceny as a lesser offense of the second count.

¶5Appellant contends that the evidence was insufficient to permit the jury to infer that he had the requisite intent to commit grand larceny when he broke and entered the dwelling. Appellant's position is well taken. The evidence established that appellant was apprehended shortly after he had left the premises, at which time he had in his possession a color television set, a camera, and a portable radio, all of which had been stolen from the dwelling. However, the State offered no evidence to establish that this property had a value of $100.00 or more at the time of the taking, an essential element of grand larceny. Spencer v. State, Fla.App. 1968, 217 So.2d 331. Beyond being apprehended "red-handed" with the stolen property, there was no other evidence or circumstances bearing on the question of appellant's intent. In such cases it has been said that the best evidence of his intent is what he did steal. Rumph v. State, Fla.App. 1971, 248 So.2d 526.

¶6We conclude on the basis of Rumph v. State, supra; Adams v. State, Fla.App. 1971, 242 So.2d 723, and Todd v. State, Fla.App. 1966, 187 So.2d 908, that the evidence was insufficient to sustain the conviction of the crime of breaking and entering with intent to commit a felony, and that a judgment of guilt should be entered as to the lesser included crime of breaking and entering with intent to commit a misdemeanor, to-wit: petit larceny.

¶7The certified copy of judgment and sentence reflects that after appellant was adjudged guilty of the crime of breaking and entering with intent to commit a felony and sentenced accordingly, the following language appears:

"At this time, a judgment of guilty was entered herein as to Count Two, but the defendant was not sentenced as to Count Two in conformance with 4th District Court of Appeals Opinion filed on April 30, 1971 (Lietch v. State)... ."

¶8The judgment of guilty as to count two is misleading (if not erroneous) since count two of the information charged grand larceny, whereas the jury by its verdict found appellant guilty of petit larceny. Furthermore, the trial court's reliance upon the case of Lietch v. State, Fla.App. 1971, 248 So.2d 203, as justification for failure to sentence appellant on the separate conviction of petit larceny was misplaced. The Lietch case involved merely different facets of the same criminal transaction. That is inapposite to this case. The crime of breaking and entering with intent to commit a specified felony or misdemeanor, and the crime of having committed or having attempted to commit the same specified felony or misdemeanor, are two separate and distinct substantive offenses. State v. Conrad, Fla.App. 1971, 243 So.2d 174.

¶9The judgment on each count is reversed and the sentence on count one is vacated, and this cause is remanded for entry of judgment and sentence on each count consistent herewith.

¶10Reversed and remanded.

¶11REED, C.J., and CROSS, JJ., concur.

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