Burns v. State
| Decision Date | 20 September 1974 |
| Docket Number | No. 72--422,72--422 |
| Parties | Roger Ray BURNS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James A. Gardner, Public Defender, and Mary Jo M. Gallay, Asst. Public Defender, Bradenton, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
Burns was charged with larceny of a calf under Florida Statute Section 811.11 (1971). At arraignment, the Assistant Public Defender assigned to represent him tendered a plea of guilty to grand larceny. The plea was accepted after a colloquy between the trial judge and the defendant in which the defendant's rights were patiently explained to him and the record shows conclusively that he knowingly and intelligently waived them. This disposes of the first two contentions in Burns' petition for post-conviction relief.
Burns' third contention is that he was inadequately represented by counsel. The record on this direct appeal does not substantiate this claim. If there is any violation of the Sixth Amendment which Burns wishes to raise specifically, he is at liberty to do so pursuant to CrPR 3.850 in a petition directed to the trial court.
What troubles us about this case is that Burns was adjudicated guilty of the offense of grand larceny although he was originally charged with larceny of a calf under a statute since repealed. Both carry the same maximum sentence, five years. 1 However, Fla.Stat. § 811.11 (1969) requires a minimum 2-year sentence for larceny of a calf, a provision not applicable to grand larceny. Consequently, the acceptance by Burns' counsel of the opportunity to plead to grand larceny may have constituted a cunning ploy. It certainly is harmless.
We are thus confronted with the question whether to treat the adjudication of guilt and the sentence entered thereupon as void or to treat the proceedings conducted in open court and duly recorded as constituting a mutually agreeable amendment of the accusatory writ. Under the peculiar circumstances of this case we think the latter course is proper. We are aware that the Attorney General has long advised that a new affidavit be filed before a magistrate accepts a plea to a lesser offense. 2 In the present case we think it proper to treat the proceedings as an amendment of the accusatory writ. All parties agreed, and the offense to which the judgment relates was less severe than that charged in the sense that it did not...
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State v. Izzard
...of an amended information, to accept his plea to a lesser charge than that contained in the original information. In Burns v. State, 300 So.2d 317 (Fla.Dist. Ct.App.1974), the Court of Appeals of Florida considered a similar situation where a defendant pled guilty to an offense that was not......
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Bodie v. State
...a burglary, where the information did not charge that the defendant wore a mask. 711 So.2d at 1277–78. Likewise, in Burns v. State, 300 So.2d 317, 317–18 (Fla. 2d DCA 1974), the State charged defendant with larceny of a calf, but he pled guilty to grand larceny. The court held that the plea......
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Bradley v. State, 5D06-3577.
...law, the decisional law has allowed a plea to supply missing elements from an indictment or information. For example, in Burns v. State, 300 So.2d 317 (Fla. 2d DCA 1974), the appellant was charged with larceny and entered a guilty plea to grand larceny. On appeal, he asserted that he could ......
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Billiot v. State, 97-2458
...to include them."). In Burns v. State, appellant was charged with larceny and entered a guilty plea to grand larceny. 300 So.2d 317 (Fla. 2d DCA 1974). On appeal he asserted that he could not be adjudicated guilty of a crime with which he was not charged. The court affirmed the conviction o......