Kelsey v. State, V--313

Decision Date21 January 1975
Docket NumberNo. V--313,V--313
Citation317 So.2d 445
PartiesCharlie KELSEY, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

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.1st 1974, 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 386 and Estevez v. State, Fla.App.3rd 1974, 290 So.2d 138. However, the above views are in direct conflict with Davis v. State, Fla.App.2nd 1973, 277 So.2d 300 and Edmond v. State, Fla.App.2d 1973, 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...

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4 cases
  • Tascano v. State, KK-22
    • United States
    • Florida District Court of Appeals
    • October 18, 1978
    ...MacMainor v. State, 328 So.2d 264 (Fla. 1st D.C.A. 1976); Dowis v. State, 326 So.2d 196 (Fla. 4th D.C.A. 1976); Kelsey v. State, 317 So.2d 445 (Fla. 1st D.C.A. 1975); Howard v. State, 316 So.2d 654 (Fla. 3d D.C.A. 1975); Wheat v. State, 315 So.2d 203 (Fla. 1st D.C.A. 1975); Roper v. State, ......
  • State v. Terry
    • United States
    • Florida Supreme Court
    • February 25, 1976
    ...1975); Roper v. State, 315 So.2d 206 (Fla.App.1st 1975); Howard v. State, 316 So.2d 654 (Fla.App.3rd 1975); Kelsey v. State, 317 So.2d 445 (Fla.App.1st 1975) and Davis v. State, 319 So.2d 611 (Fla.App.3rd 1975).2 E.g., Brown v. State, 245 So.2d 68 (Fla.1971); State v. Washington, 268 So.2d ......
  • Tascano v. State
    • United States
    • Florida Supreme Court
    • June 5, 1980 the penalty instructions. Huckeba v. State, 322 So.2d 29 (Fla. 1975); Johnson v. State, 308 So.2d 38 (Fla. 1974); Kelsey v. State, 317 So.2d 445 (Fla. 1st DCA 1975). The rule as amended February 10 effective July 1, 1977, reads as The presiding judge shall charge the jury only upon the l......
  • Thomas v. State, V-36
    • United States
    • Florida District Court of Appeals
    • June 24, 1975
    ...that accordingly only one sentence should have been imposed. (See McHaney v. State, Fla.App.1st 1974, 295 So.2d 355 and Kelsey v. State, Fla.App.1st 1975, 317 So.2d 445. The Supreme Court of Florida has settled that issue in Estevez v. State, Sup.Ct.Fla.1975, 313 So.2d Affirmed. JOHNSON, Ac......

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