Griffin v. State, 1746
| Citation | 217 So.2d 893 |
| Decision Date | 27 January 1969 |
| Docket Number | No. 1746,1746 |
| Parties | Dallas GRIFFIN, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Jack A. Nants, Orlando, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from a judgment and sentence entered in the Criminal Court of Record for Orange County, Florida, under an information charging the defendant-appellant with a violation of Section 790.23, F.S.1967, F.S.A., by the possession of a pistol after a felony conviction. The information alleged that the defendant had been convicted on 9 March 1960 in the Criminal Court of Record for Orange County, Florida, under information number 77312 of the crime of breaking and entering a building with the intent to commit a misdemeanor. The information also alleged that subsequent to the conviction, the defendant on 12 July 1965 was found to have had a pistol in his possession.
The defendant pled not guilty and was tried by a jury and found guilty as charged. The defendant was represented by counsel at the time of arraignment and trial.
The defendant's points on appeal basically question the sufficiency of the evidence to sustain the jury verdict.
In support of his points on appeal the defendant argues that his arrest without a warrant was illegal; therefore, the gun which was taken from his person as an incident to that arrest was illegally seized and not admissible in evidence. We do not need to pass on the legality of the arrest. The record reveals that the defendant waived any objection which he might have had to the introduction of the gun. After a proper predicate was laid, the state offered the gun and bullets in evidence, and the defendant expressly stated 'no objection'. Having thus failed to raise the objection in the trial court, the defendant has waived any objection which he might otherwise have had to the introduction of the evidence. Robertson v. State, 1927, 94 Fla. 770, 114 So. 534; Shea v. State, Fla.App.1964, 167 So.2d 767.
Next the defendant contends that his prior conviction was not shown by the state to have been a felony. At the trial of the present case the prior conviction of the defendant was proved by the introduction into evidence of minute book entries which related to the prior conviction. Also the state introduced the information under which the prior conviction was obtained. The prior conviction was, therefore, properly proved. Shargaa v. State, Fla.1958, 102 So.2d 809. The sentence of the court in the previous conviction appears from the minute book entries to read as follows:
'You, Dallas Griffin, having entered a plea of guilty to the crime of breaking and entering with intent to commit a misdemeanor and petit larceny as charged in the first and second counts of the Information, the Court adjudicates you to be guilty of said crime as charged in said count of the Information; further ordered and adjudicated that you would be imprisoned by confinement, and committed to the Division of Corrections for two years from November 21, 1959 with the recommendation that the defendant be transferred to Apalachee Institute.'
The minute book entry demonstrates that the prior conviction was for the crime of breaking and entering a building with the intent to commit a misdemeanor. At the time of this conviction Section 810.05, F.S.1959, F.S.A., provided that for such crime a person could be punished by imprisonment in the state prison or county jail not exceeding five years or by fine not exceeding $500.00. At the time of that conviction, Section 775.08, F.S.1959, F.S.A., defined a felony as, 'Any crime Punishable by death, or imprisonment in the state prison * * *' (Emphasis added.) The definition does not hinge on what punishment is actually given, but what punishment is authorized. Chapman v. Lake, 1932, 112 Fla. 746, 151 So. 399. Imprisonment in the state prison...
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