McHaney v. State, U--104

Decision Date04 June 1974
Docket NumberNo. U--104,U--104
Citation295 So.2d 355
PartiesJack James McHANEY, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

RAWLS, Chief Judge.

The salient point on appeal is whether appellant may be found guilty of and have consecutive sentences imposed for both the crimes of breaking and entering with intent to commit a felony, i.e., grand larceny, and grand larceny.

H. C. Smith and Charles W. Smith returned to their home on the evening of June 20, 1973, to find that a breaking and entering was in process. H. C. Smith identified appellant as one of the culprits. The sheriff's department was summoned to the scene and with the use of dogs, the deputies trailed the suspects to a nearby creek. There the deputies found appellant and his accomplices lying along the side of the creek. Officer Allred testified that he found on appellant $1,373.00 and a silver dollar key chain with the initials 'C.W.S.' The Smith brothers testified that after the breaking and entering a pump gun, an old pistol, a key ring and $2,759.00 in cash were missing from their home. The jury convicted appellant of breaking and entering with intent to commit a felony and of grand larceny. Thereafter the trial court sentenced appellant to fifteen years in the state penitentiary for the crime of breaking and entering with intent to commit a felony, iE., grand larceny and five years on the grand larceny conviction; the sentences to run consecutively.

Appellant urges that as the breaking and entering with intent to commit a felony, i.e., grand larceny and the grand larceny were both a part of the same criminal transaction, he can only be sentenced for the highest offense, i.e., breaking and entering with intent to commit a felony. We agree. The key element of breaking and entering with intent to commit a felony, i.e., grand larceny is the intent. 1 To prove the crime of breaking and entering with intent to commit a felony, it must be shown that a grand larceny did occur or that there was property valued at $100.00 or more which could have been the subject of the larceny. 2 We hold that appellant can only be sentenced for the highest offense which is breaking and entering with intent to commit a felony. 3

Before concluding we note that appellant also assigns as error the admission into evidence of certain physical evidence after the state had replied to appellant's pretrial motion for discovery that it had no physical evidence in its possession. While the conduct of the state is inexcusable and might well have rise to a reversal of a conviction, we hold that in this case where appellant was caught red-handed the error is harmless. Accordingly, we...

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4 cases
  • Estevez v. State
    • United States
    • Florida Supreme Court
    • February 26, 1975
    ...highest offense. Confronted with the identical question the District Court of Appeal, First District, has very recently held in McHaney v. State, 295 So.2d 355 (Fla.App. 1, 1974), as 'Appellant urges that as the breaking and entering with intent to commit a felony, i.e., grand larceny and t......
  • Kelsey v. State, V--313
    • United States
    • Florida District Court of Appeals
    • January 21, 1975
    ...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 ......
  • State v. McHaney, 45843
    • United States
    • Florida Supreme Court
    • June 11, 1975
  • Thomas v. State, V-36
    • United States
    • Florida District Court of Appeals
    • June 24, 1975
    ...facets or phases of the same criminal transaction and 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. S......

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