Haley v. State
| Citation | 315 So.2d 525 |
| Decision Date | 25 June 1975 |
| Docket Number | 74--1396,Nos. 74--1397,s. 74--1397 |
| Parties | Douglas Gene HALEY, Appellant, v. STATE of Florida, Appellee. Patrick William O'SHEA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James A. Gardner, Public Defender, Sarasota, and Harold H. Moore, Asst. Public Defender, Bradenton, for appellants.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
Appellants were charged by informations with robbery 1 and convicted of grand larceny. Since the informations contained no allegation of the value of the stolen property, we reverse and remand for entry of judgments of petit larceny.
At trial, the evidence showed that the value of the property taken was over $100. The judge instructed the jury on robbery and the lesser included offenses of grand larceny and petit larceny. Immediately after the jury retired, the appellants objected to the charge of grand larceny.
In Brown v. State, Fla.1968, 206 So.2d 377, lesser offenses were divided into four categories:
(1) Crimes divisible into degrees;
(2) Attempts to commit offenses;
(3) Offenses necessarily included in the offense charged; and
(4) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.
In State v. Anderson, Fla.1972, 270 So.2d 353, the court held that an instruction on a category 4) offense should not be given unless the accusatory pleading alleges all the elements of the lesser offense:
The accusatory pleading must apprise the defendant of all offenses of which he may be convicted. This simply means that when the State makes a charge, ex parte though it may be, it is asserting that the defendant is guilty and may be convicted of that offense, all degrees thereunder when the offense is divided in degrees, the attempt to commit the offense, and any lesser offense which is an essential ingredient of the major crime charged.
In addition, it means that he may be convicted of any lesser offense, which, although not an essential ingredient of the major crime, Is spelled out in the accusatory pleading in that it alleged all of the elements of the lesser offense and the proof at trial supports the charge. . . . (Emphasis supplied.)
Larceny is a necessarily included offense in the crime of robbery. Brown v. State, Supra. However, grand larceny contains an element not present in the offense of robbery: that the value of the property stolen was one hundred dollars or more. Grand larceny is not necessarily included in the offense or robbery, and Anderson requires that the accusatory pleading allege this additional element of value in order for a conviction of grand larceny to the sustained.
In accordance with Anderson, supra, Florida Standard Jury Instructions in Criminal Cases, Robbery, § 2.06 includes the following language:
Degrees of Larceny
If, from the evidence, you find beyond a reasonable doubt that the defendant did steal, take and carry away the property described from the person alleged in the information (indictment) but are not convinced beyond a reasonable doubt that the taking was accomplished by force, violence, assault or putting in fear you should find the defendant guilty of larceny, and
a. in this case the information (indictment) does not allege the value of the property to be one hundred dollars or more, so the verdict should find the defendant guilty of petit larceny.
The State argues that appellants waived this issue because the record fails to reveal a timely objection to the jury instructions. This case does not merely involve erroneous instructions. The defendants were convicted of a crime not...
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