Footman v. State, 67--187
| Decision Date | 25 October 1967 |
| Docket Number | No. 67--187,67--187 |
| Citation | 203 So.2d 356 |
| Parties | Charlie Prince FOOTMAN, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert E. Pyle, of Edmund, McDaniel & Pyle, Lake Alfred, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.
The appellant, Charlie Prince Footman, Jr., was informed against. In separate counts he was charged with the crimes of (1) breaking and entering a commercial building with intent to commit a felony therein, and (2) grand larceny. When arraigned he pleaded not guilty. Trial was had before a jury in the Polk County Criminal Court of Record, and the defendant was found guilty. Thereupon the court entered its judgment of guilt on the two charges and imposed two sentences of confinement in the state penitentiary for periods of five (5) years for each count. The sentences are to run consecutively.
The sole question raised by this appeal is whether the trial court erred in imposing consecutive sentences of five (5) years for each of the two counts contained in the information.
Appellant contends that the two counts of the information were but separate facets of a single criminal transaction, as distinguished from counts charging separate and distinct, though perhaps kindred crimes. He further argues that the law in Florida is well settled that when an information contains more than one count, and each is a facet or phase of the same transaction, there can only be one sentence imposed; and that sentence should be imposed on the highest offense charged. Citing for authority Wyche v. State, Fla.App.1965, 178 So.2d 875; Wells v. State, Fla.App.1964 168 So.2d 787; Sharon v. State, Fla.App.1963, 156 So.2d 677; Bullard v. State, Fla.App.1963, 151 So.2d 343; State v. Schagg, Fla.App.1959, 115 So.2d 783; and Norwood v. State, Fla.1956, 86 So.2d 427.
We would not quarrel with the above proposition of law as stated by appellant when used in the proper context. Whether the proposition can properly be utilized in the case sub judice, however, is bottomed on the more basic question of whether breaking and entering with intent to commit a felony and grand larceny are facets of the same criminal transaction.
Our Supreme Court in Steele v. Mayo, Fla.1954, 72 So.2d 386, upheld the sentencing of a defendant where he had been sentenced to five years for breaking and entering and two years for larceny. In doing so it stated:
'It is also contended that the charge of breaking and entering is inconsistent with the charge of larceny and that both cannot stand.
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Edmond v. State
...This court, in a case in which the aggregate punishment was less than that attributable to the graver offense, affirmed. Footman v. State, Fla.App.2d 1967, 203 So.2d 356. In a recent opinion by Judge Liles, this court receded from Footman to the extent that it implies permissible sentences ......
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Estevez v. State
...only be classified as part of the same criminal act. To the extent this holding may conflict with our prior decision in Footman v. State, 203 So.2d 356 (Fla.App.1967), we recede from that decision. The 'same transaction' doctrine cannot logically hinge upon the facile test of whether the tw......
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...only be classified as part of the same criminal act. To the extent this holding may conflict with our prior decision in Footman v. State, 203 So.2d 356 (Fla.App.1967), we recede from that decision. The 'same transaction' doctrine cannot logically hinge upon the facile test of whether the tw......