McClendon v. State, LL-412
| Decision Date | 10 July 1979 |
| Docket Number | No. LL-412,LL-412 |
| Citation | 372 So.2d 1161 |
| Parties | Charles McCLENDON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant, convicted below of two counts of robbery, two counts of burglary, two counts of grand larceny, and aggravated battery, appeals his convictions claiming insufficient evidence. He also contends that one of the grand larceny charges and the aggravated battery charge were lesser included offenses of one of the robbery charges, precluding judgment and sentence on those counts. After careful consideration, we affirm in part and reverse in part.
All of the charges grew out of a January 15, 1978 breakin at the isolated trailer residence of elderly, blind C. M. "Chick" Miller. Miller's housekeeper Ida Gebhart, there cooking supper, testified that she saw four men enter the trailer, then the first man, whom she identified as appellant, "grabbed Mr. Miller and knocked him down on the floor . . ., dragged him across the trailer . . ., and started fighting with him and told him to shut up." Miller testified that appellant came bursting in the door and "shot me in the hand and hit me over the head with some object . . ., and knocked me down on the floor, . . . pulled me down and ransacked my pockets and took what little money that I had ($20) and my knife," then "put the gun barrel to my temple and said, 'shut up or I will blow your brains out.' " Other state evidence established that the four men took a shotgun, two radios, and a television set from Miller's residence, as well as the money and keys in Mrs. Gebhart's purse. In addition, it was later discovered that a television set and part of a gun were taken from Mrs. Gebhart's nearby trailer, and that the batteries had been stolen from both Miller's and Gebhart's automobiles.
After reviewing the lengthy trial transcript, we find sufficient evidence establishing appellant's participation in the incident. State evidence proved that he had on the night of the offense borrowed a car later found abandoned near the trailer with the stolen goods in and around it. Furthermore, Mrs. Gebhart identified him at trial as a perpetrator, although her testimony was slightly contradicted by statements made just after the incident. Finally there was evidence of an inculpatory statement made by appellant to another man on the day after the offense. In short, the direct and circumstantial evidence sufficiently identified appellant's involvement in the episode and supported the jury's verdict.
We agree with appellant, however that the grand larceny charge against him for the items stolen from Miller's residence was a lesser included offense of the Miller robbery, precluding judgment and sentence on the larceny charge. Several cases decided since the effective date of the new "single transaction" statute, Section 775.021(4), Florida Statutes (1977), have held that a defendant cannot be...
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People v. Ortega
...the grand larceny charge of that case was a lesser included offense of robbery. (Id. at p. 350, fn. 47, citing McClendon v. State (Fla.Dist.Ct.App.1979) 372 So.2d 1161, 1162.) The Florida opinion does not specify the exact charging allegation or the elements of the crimes under Florida law.......
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Rodriquez v. State, 82-570
...1983); Castleberry v. State, 402 So.2d 1231 (Fla. 5th DCA 1981), review denied, 412 So.2d 470 (Fla.1982). See also McClendon v. State, 372 So.2d 1161 (Fla. 1st DCA 1979). We reaffirm that holding and, therefore, reverse the defendant's conviction for grand theft. The conviction and sentence......
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Foster v. State
...the defendant first struck and beat the victim until she was rendered unconscious and then committed the robbery." In McClendon v. Smith, 372 So.2d 1161 (Fla. 1st DCA 1979), dual convictions for aggravated battery and robbery were upheld against a double jeopardy challenge where, during the......
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Cantrell v. State
...as the higher offense. Sellars v. State, 362 So.2d 33 (Fla. 1st DCA 1978), cert. discharged, 377 So.2d 24 (Fla.1979); McClendon v. State, 372 So.2d 1161 (Fla. 1st DCA 1979); Purvis v. State, 370 So.2d 32 (Fla. 2d DCA 1978). Although Section 775.021(4) might appear to authorize separate sent......