Miles v. State, 79-1
| Citation | 374 So.2d 1167 |
| Decision Date | 19 September 1979 |
| Docket Number | No. 79-1,79-1 |
| Parties | Donald Earl MILES, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Jack O. Johnson, Public Defender, Bartow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
Appellant seeks reversal of his conviction for second degree grand theft because the court refused his request to charge the jury on attempted second degree grand theft. Appellant would prevail if there were such a crime as attempted grand theft. Lomax v. State, 345 So.2d 719 (Fla.1977). However, we believe that the legislature's use of the word "endeavors" in the theft statute, Section 812.014(1), Florida Statutes (Supp.1978), is equivalent to the use of the word "attempts." To endeavor to do something means to make an attempt to do it. When the definition of the major offense charged includes the attempt to commit that act, there can be no separate crime of attempt. State v. Thomas, 362 So.2d 1348 (Fla.1978). Thus, because there is no crime of attempted second degree grand theft, the court did not err in refusing to charge on it.
On the other hand, we find merit in appellant's objection to his enhanced sentence of ten years as an habitual felony offender. Section 775.084, Florida Statutes (1977), provides in pertinent part as follows:
(1) As used in this act:
(a) "Habitual felony offender" means a defendant for whom the court may impose an extended term of imprisonment, as provided in this section, if it finds that:
1. The defendant has:
a. Previously been convicted of a felony in this state;
b. Twice previously been convicted of a misdemeanor of the first degree in this state or Of another qualified offense for which the defendant was convicted after the defendant's 18th birthday;
(c) "Qualified offense" means any offense in violation of a law of another state or of the United States that was punishable under the law of such state or the United States at the time of its commission by the defendant by death or imprisonment exceeding 1 year or that was equivalent in penalty to a misdemeanor of the first degree. (Emphasis supplied.)
The only previous conviction which the court relied upon in sentencing appellant as an habitual felony offender was an Alabama conviction for manslaughter. However, the plain wording of the statute requires two out-of-state...
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Jones v. State
...] is equivalent to the use of the word 'attempts.' To endeavor to do something means to make an attempt to do it." Miles v. State, 374 So.2d 1167, 1168 (Fla. 2d DCA 1979). "This statute is different from the previous grand larceny statute in that no distinction is made between the theft and......
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State v. Sykes
...grand theft. Bell v. State, 382 So.2d 107 (Fla. 5th DCA 1980); McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980); Miles v. State, 374 So.2d 1167 (Fla. 2d DCA 1979). The jury should not have been instructed that attempt was a lesser included offense, nor should they have been given the op......
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Piantadosi v. State, 80-1167
...third-degree burglary be punished as third-degree felonies). See also Milazzo v. State, 377 So.2d 1161 (Fla.1979); Miles v. State, 374 So.2d 1167 (Fla.2d DCA 1979); Hestor v. State, 363 So.2d 26 (Fla. 4th DCA 1978) (addressing other statutes which proscribe both the completed crime and the ......
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Sykes v. State
...is no such offense as "attempted second degree grand theft" under the current grand theft statute, Section 812.014(1). Miles v. State, 374 So.2d 1167 (Fla. 2nd DCA 1979); and another case holds that the law now makes no distinction between "actual stealing and the attempt to steal." Bell v.......