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382 So. 2d 107

Docket No. 78-1066/T4-113.

Bell v. State

Losko BELL, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided March 26, 1980.

Rehearing Denied April 16, 1980.

District Court of Appeal of Florida · decided 1980-03-26

Cited by 7 later decisions — most recently February 1985

7 state decisions

Key passage — most relied on by later courts

“actual stealing and the attempt to steal.”

quoted by 2 later decisions, including Jones v. State, 397 So. 2d 991 - Sykes v. State

“In a separate proceeding, the court shall determine if it is necessary for the protection of the public to sentence the defendant to an extended term as provided in subsection (4)... .”

quoted by 1 later decision, including Eichhorn v. State

Relies on 362 So. 2d 10 - State v. Allen · Petty v. State · 370 So. 2d 1142 - State v. Tomas

Good law ✅— No negative treatment on recordhow we know

Decided 1980-03-26

View the full empirical analysis of this case →

¶1*108 Richard L. Jorandby, Public Defender, and Sara Bresky, Asst. Public Defender, West Palm Beach, for appellant.

¶2Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.

¶3DAUKSCH, Chief Judge.

¶4This is an appeal from a conviction and sentence in a grand theft case. Appellant alleges two errors, the first of which is the court's failure to instruct the jury as to the alleged lesser included offense of attempted grand theft. The crime charged is "[a] person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or use, the property of another... ." Fla. Stat. 812.014(1) (1979). This statute is different from the previous grand larceny statute in that no distinction is made between the theft and the "endeavor." We agree "endeavor" means "attempt" and the law now makes no distinction between the actual stealing and the attempt to steal and punishes both the same. State v. Tomas, 370 So.2d 1142, 1143 (Fla. 1979); State v. Allen, 362 So.2d 10, 12 (Fla. 1978). Therefore, we affirm the conviction.

¶5The second attack on appeal concerns the trial court's failure to follow the statutory guidelines in passing an enhanced penalty sentence upon the appellant. Fla. Stat. 775.084 (1979). We agree. The trial court failed to specifically find the enhanced penalty was necessary for the protection of the public. Just because the appellant was previously convicted of a felony within five years of the commission of the crime in this case does not mean he automatically is subject to a greater term of years in prison. It must be pleaded, proved and found that the extended term in prison is necessary for the protection of the public. Grey v. State, 362 So.2d 425 (Fla. 4th DCA 1978).

¶6The findings of fact to support the enhanced penalty need not be in writing but must be on the record in order to afford review. King v. State, 369 So.2d 1031 (Fla. 4th DCA 1979). Upon resentencing, the trial judge cannot sentence appellant to an indeterminate sentence, as he did before, *109 because the legislature has disallowed such a sentence in the punishment of habitual criminals. Fla. Stat. 921.18 (1979).

¶7Judgment affirmed, sentence reversed and remanded for resentencing.

¶8ORFINGER and COBB, JJ., concur.

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