Bell v. State, 78-1066
| Decision Date | 26 March 1980 |
| Docket Number | No. 78-1066,78-1066 |
| Citation | 382 So.2d 107 |
| Parties | Losko BELL, Appellant, v. STATE of Florida, Appellee. /T4-113. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Sara Bresky, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
This 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.
The 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).
The 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, because the legislature has disallowed such a sentence in the punishment of habitual criminals. Fla.Stat. 921.18 (1979).
Judgment affirmed, sentence reversed and remanded for resentencing.
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Jones v. State
...the law now makes no distinction between the actual stealing and the attempt to steal and punishes both the same." Bell v. State, 382 So.2d 107, 108 (Fla. 5th DCA 1980). As the defendant Jones was charged herein with an "endeavor" to commit a grand theft, this was equivalent to charging him......
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State v. Sykes
...operate with reference to them. Therefore, there is no such offense in Florida as attempted second-degree grand theft. Bell v. State, 382 So.2d 107 (Fla. 5th DCA 1980); McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980); Miles v. State, 374 So.2d 1167 (Fla. 2d DCA 1979). The jury should n......
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Sykes v. State
...1979); and another case holds that the law now makes no distinction between "actual stealing and the attempt to steal." Bell v. State, 382 So.2d 107 (Fla. 5th DCA 1980). McIntyre v. State, 380 So.2d 1064 (Fla. 2nd DCA 1980), represents an exception to the general rule that a conviction of a......
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Singleton v. State, 79-1204
...95 (Fla. 1st DCA 1972).6 Section 775.084, Florida Statutes (1977).7 See Eutsey v. State, 383 So.2d 219 (Fla. 1980) and Bell v. State, 382 So.2d 107 (Fla. 5th DCA 1980).8 See Grubbs v. State, 373 So.2d 905 (Fla. 1979) and Wood v. State, 378 So.2d 110 (Fla. 5th DCA ...