Brown v. State
| Decision Date | 12 February 1970 |
| Docket Number | No. 2481,2481 |
| Parties | Calloway BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
The appellant, Calloway Brown, appeals from a conviction under F.S.1967, Section 790.23, F.S.A., for the offense of possessing a pistol after a previous felony conviction. The previous conviction was for the crime of breaking and entering with the intent to commit a misdemeanor under F.S.1965, Section 810.05, F.S.A. The appellant contends that breaking and entering with the intent to commit a misdemeanor is not a felony; therefore, his conviction under F.S.1967, Section 790.23, F.S.A., is invalid in that a conviction under that statute must rest on proof of a prior Felony conviction.
Hence the question before us is whether or not the crime of breaking and entering with the intent to commit a misdemeanor under F.S.1965, Section 810.05, F.S.A., is a felony or a misdemeanor. Initially we concluded the crime was a misdemeanor and held that the judgment and sentence appealed from should be reversed. After a rehearing, we have concluded that our first decision was in error. We now conclude that the crime is a felony and affirm the judgment and sentence appealed.
There are three statutes which have a bearing on the issue. The first is F.S.1965, Section 810.05, F.S.A., which defines the crime in question and provides penalties therefor. This statute reads:
'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.'
The next statute is F.S.1965, Section 775.08, F.S.A. It defines felonies and misdemeanors in the following language:
Finally, F.S.1965, Section 775.06, F.S.A., must be considered, and its terms will be discussed infra.
Section 810.05 does not expressly classify the crime with which it deals as a felony or a misdemeanor. With respect to the place of imprisonment, the statute provides alternatives. Under the statute the trial court had the authority to punish by imprisonment in either the county jail or the state prison.
Section 775.08 defines a felony as any crime Punishable by death, Or imprisonment in the state prison. Under the language of this statute, given its plain and ordinary meaning, any crime for which a convicted person may be imprisoned in the state prison is a crime 'punishable' by imprisonment in the state prison and, therefore, a felony--even though another place of imprisonment might also have been authorized as an alternative. Cf. State v. Fitz, Fla.1967, 202 So.2d 841 and Chapman v. Lake, 1933, 112 Fla. 746, 151 So. 399, 402. See also Tidwell v. Circuit Court, 1942, 151 Fla. 333, 9 So.2d 630; Cox v. State, Fla.App.1966, 190 So.2d 823; and Griffin v. State, Fla.App.1969, 217 So.2d 893. Under F.S. Section 810.05, F.S.A., breaking and entering with the intent to commit a misdemeanor is a crime for which a convicted person may be imprisoned in the state prison and, therefore, is a felony by the terms of F.S. Section 775.08, F.S.A.
Our treatment of the question before us would not be complete without some consideration of F.S. Section 775.06, F.S.A. In pertinent part it provides:
'Whenever punishment by imprisonment is prescribed, and The said imprisonment is not expressly directed to be in the state prison, it shall be taken and held to be imprisonment in the county jail * * *.' (Emphasis added.)
If the emphasized portion of this statute were literally construed, Section 775.06 could apply to a crime where Alternate places of imprisonment were authorized because, where alternate places of imprisonment are authorized, imprisonment is not 'expressly directed to be in the state prison' (emphasis added). And if the statute were applied to such a crime, the effect would be to require imprisonment in the county jail. Obviously this would eliminate the alternatives expressly provided in the statute defining the crime. Also the application of Section 775.06 to statutes providing alternative places of imprisonment would, by virtue of the last sentence in Section 775.08, convert into misdemeanors those crimes that are classified as felonies under the first sentence of Section 775.08. On the assumption that the legislature could not have intended such inconsistencies, we conclude that the quoted provisions of Section 775.06, when properly interpreted, apply only to crimes for which punishment by imprisonment is provided, But no place of imprisonment is specified. 1 This interpretation harmonizes Section 775.06 and Section 775.08 and allows each a reasonable sphere of operation. Also this interpretation preserves the alternatives as to place of imprisonment which the legislature has written into many criminal statutes. 2 When the question before us was originally presented, we thought it was controlled by the following language in Adams v. Elliott, 1937, 128 Fla. 79, 174 So. 731, 735:
'Where a crime may be punished as a misdemeanor or as a felony, all doubts will be resolved in the defendant's favor and the crime will be considered a misdemeanor * * *.'
On a further study of the Adams case, we are convinced that the quoted language was merely dictum because the crime there under consideration was not punishable as a felony by imprisonment in the state prison, or as a misdemeanor by imprisonment in the county jail. The crime there under consideration was punishable by imprisonment, But no place of imprisonment was specified and the crime was not otherwise specifically designated as a felony or misdemeanor. The court held the crime to be a misdemeanor. In our opinion, the holding in Adams v. Elliott, supra, was controlled not by the language above quoted, but by F.S. Section 775.06, F.S.A. (then Section 7103, Compiled General Laws). This statute directed that the imprisonment be in the county jail, in which event, under Section 25 of Article XVI of the Florida Constitution of 1885 3 and F.S. Section 775.08, F.S.A. (then Section 7105, Compiled General Laws), the crime could only have been classified as a misdemeanor. In like manner we think the case of State v. Febre, 1945, 156 Fla. 149, 23 So.2d 270, originally relied on by us, can be reconciled with the position we now take. 4
To summarize, it is our view that breaking and entering with the intent to commit a misdemeanor under F.S.1965, Section 810.05, F.S.A., is a crime punishable by imprisonment in the state prison. It is, therefore, a felony under F.S. Section 775.08, F.S.A. As a felony, proof of breaking and entering with the intent to commit a misdemeanor will support a conviction under F.S.1967, Section 790.23, F.S.A., for the offense of the possession of a pistol after a previous felony conviction. Hence, the judgment and sentence appealed from should be affirmed, and our original opinion herein is hereby vacated.
We view this decision as one passing on a question of great public interest and will, upon a proper application, so certify it, to facilitate a review of this decision by the Florida Supreme Court on certiorari under Rule 4.5(c)(6), F.A.R., 32 F.S.A.
Affirmed.
Alone but with lowered visor and leveled lance, I again enter the arena of felonies and misdemeanors, attempting to obtain recognition of an old but unapplied construction pronounced by our State Supreme Court.
The majority recedes from the view that breaking and entering with the intent to commit a misdemeanor is a misdemeanor, thereby desolating any construction of our constitution 1 and statute 2 defining felony and misdemeanor to the effect that where a crime may be punished as a misdemeanor Or as a felony it is a misdemeanor. Otherwise stated, the majority construes that if a crime may be punished as a felony it is in fact a felony.
While laudable, logical and reasonable, this view was abrogated years ago by our State Supreme Court in Adams v. Elliott, 1937, 128 Fla. 79, 174 So. 731.
Adams is quoted in part, acknowledged to say what in fact it does say, but then the majority dismisses the quote as dictum. This I cannot do.
Adams was a civil action for damages, with error alleged in the sitting of a juror who had been convicted of a crime, where the act creating the offense failed to specify the place of incarceration (state prison or county jail). It determined the offense to be a misdemeanor and in doing so applied construction to conditions (1) where the offense may be punished as either a misdemeanor or as a felony and (2) where the place of imprisonment may not be specified. The court's ruling could have been entered upon either theory. Because it chose to construe both does not render it dictum, for in Parsons v. Federal Realty Corporation, 1931, 105 Fla. 105, 143 So. 912, 88 A.L.R. 275, it is stated:
'A ruling in a case fully considered and decided by an appellate court is not dictum merely because it was not necessary, on account of one conclusion reached upon one question, to consider another question the decision of which would have controlled the judgment.
'Two or more questions properly arising in a case under the pleadings and proof may be determined, even though either one would dispose of the entire case upon its merits, and neither holding is a dictum, so long as it is properly raised, considered, and determined.'
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