Kelsey v. State, V--313

• Decision Date: 21 January 1975
• Docket Number: No. V--313,V--313
• Citation: 317 So.2d 445
• Parties: Charlie KELSEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 445

317 So.2d 445

Charlie KELSEY, Appellant, v.STATE of Florida, Appellee.

No. V--313.

District Court of Appeal of Florida, First District.

Jan. 21, 1975.

Louis O. Frost, Jr., Public Defender, and James O. Brecher, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for appellee.

BOYER, Judge.

Appellant, defendant in the trial court, was charged by information with breaking and entering of a dwelling house with the intent to commit a felony therein, and, in a second count, with grand larceny.A jury of his peers found him guilty on both counts.The trial court sentenced defendant to eight years on Count I and three years on Count II, said sentences to run consecutively.Several points are presented on this appeal.

First, appellant urges that the trial court erred in imposing two consecutive sentences on the two counts of the information, thereby violating the 'single transaction rule', citing this Court's opinion in McHaney v. State, Fla.App.1st1974, 295 So.2d 355.As stated in that case, the key element of breaking and entering with intent to commit a felony is the intent.It matters not whether the culprit actually commits a felony after the breaking and entering.If he broke and entered with the requisite intent, all of which is a matter of proof, then the crime was committed.The 'transaction' is concluded.Grand larceny is quite another matter.That crime may be committed after one has broken and entered or it may be accomplished without a prior breaking and entering.The two are separate transactions and are separate crimes.Each can be committed in the absence of the other.They are not therefore 'the same criminal transaction'.Being separate crimes and separate transactions, sentences on each, following convictions on both offenses, are permissible.The record in the case sub judice reveals sufficient evidence to sustain the jury's conviction of defendant for the crime of breaking and entering of a dwelling house with the intent to commit a felony therein and sufficient evidence to sustain their verdict of guilty on the offense of committing the crime of grand larceny.The foregoing expresses the convictions and opinion of the writer hereof and is in accordance with Steele v. Mayo, Sup.Ct.Fla.1954, 72 So.2d 386andEstevez v. State, Fla.App.3rd1974, 290 So.2d 138.However, the above views are in direct conflict with Davis v. State, Fla.App.2nd1973, 277 So.2d 300andEdmond v. State, Fla.App.2d1973, 280 So.2d 449 as well as McHaney v. State, supra.Inasmuch as the facts sub judice are not reasonably distinguishable from those in McHaney v. State, supra, the writer of this opinion In the interest of stare decisis concurs with the latter opinion of this court unless and until the Supreme Court holds to the contrary.Therefore, it is apparent that in keeping with McHaney we must reverse with instructions that appellant's sentence for grand larceny be vacated.

Appellant next urges that the trial court erred in refusing to instruct the jury on penalties as required by Rule 3.390(a) RCrP.That rule provides as follows:

'The presiding judge shall...