O'Neal v. State

Citation308 So.2d 569
Decision Date12 February 1975
Docket NumberNo. 74--403,74--403
PartiesLouis Butler O'NEAL, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

James A. Gardner, Public Defender, and Samuel J. Swisher, Asst. Public Defender, Sarasota, and Edward F. Gerace, Tampa, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

SCHEB, Judge.

This is an appeal from an order denying a motion to vacate and set aside a judgment and sentence under RCrP 3.850.

The appellant/defendant was charged with breaking and entering a truck with intent to commit a crime therein, to-wit: petit larceny. A jury trial resulted in a verdict of guilty of entering without breaking a truck with intent to commit a crime, to-wit: petit larceny, for which the appellant was sentenced on February 26, 1973. Appellant's counsel, the Public Defender, filed an 'Anders' brief with this court, contending that there were no meritorious grounds on appeal. See Anders v. California, 1967, 386 U.S. 783, 87 S.Ct. 1396, 18 L.Ed.2d 493. We affirmed the conviction. O'Neal v. State, Fla.App.2d 1973, 283 So.2d 166, cert. den. Fla., 287 So.2d 98.

The appellant now contends the trial court erred in denying his RCrP 3.850 motion in that he was found guilty of an offense for which he was not charged and one which was not a lesser included offense in the crime charged.

In Skov v. State, Fla.App.2d 1974, 292 So.2d 64, cert. denied, Fla., 298 So.2d 165, we held it was error to convict an accused under F.S. 810.05 of 'entering without breaking' when he was charged with 'breaking and entering.' In the case Sub judice the appellant was charged under F.S. 810.051 with 'breaking and entering . . . a truck . . . with intent to commit a crime therein, to-wit: petit larceny.' That statute provides:

Whoever breaks and enters any automobile, truck, trailer, semitrailer, aircraft, or house car with intent to commit any crime, and whoever enters without breaking any automobile, aircraft, truck, trailer, semitrailer, or house car with intent to injure the same or any property therein or to commit larceny, shall be guilty of a felony of the third degree, . . ..

Fla.Stat. 810.051 in effect defines two different criminal acts: breaking and entering with intent to commit Any crime And entering without breaking with intent to injure the vehicle or property inside or to commit larceny. Thus the principle in Skov that the appellant could not be convicted of a crime not charged is even stronger under the statute presented here than it was under F.S. § 810.05.

When one state of facts is alleged in a criminal information it cannot be...

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14 cases
  • Torrence v. State
    • United States
    • Florida District Court of Appeals
    • October 4, 1983
    ...(Fla. 4th DCA 1980); Minor v. State, 329 So.2d 30 (Fla. 2d DCA 1976); Haley v. State, 315 So.2d 525 (Fla. 2d DCA 1975); O'Neal v. State, 308 So.2d 569 (Fla. 2d DCA 1975), overruled in Roberts v. State, 320 So.2d 832 (Fla. 2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla. 2d DCA 1975); Cata......
  • Nova v. State
    • United States
    • Florida District Court of Appeals
    • September 13, 1983
    ...the first time in a Rule 3.850 motion notwithstanding that it could have been, but was not, raised on direct appeal. 4 O'Neal v. State, 308 So.2d 569 (Fla. 2d DCA 1975), overruled on other grounds, Roberts v. State, 320 So.2d 832 (Fla. 2d DCA 1975); see also Dozier v. State, 361 So.2d 727 (......
  • Flarity v. State
    • United States
    • Florida District Court of Appeals
    • June 23, 1988
    ...(Fla. 4th DCA 1980); Minor v. State, 329 So.2d 30 (Fla. 2d DCA 1976); Haley v. State, 315 So.2d 525 (Fla. 2d DCA 1975); O'Neal v. State, 308 So.2d 569 (Fla. 2d DCA 1975), overruled, Roberts v. State, 320 So.2d 832 (Fla. 2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla. 2d DCA 1975); Catane......
  • Ray v. State
    • United States
    • Florida Supreme Court
    • July 30, 1981
    ...this claim, Ray relies on Minor v. State, 329 So.2d 30 (Fla.2d DCA 1976); Haley v. State, 315 So.2d 525 (Fla.2d DCA 1975); O'Neal v. State, 308 So.2d 569 (Fla.2d DCA), overruled in Roberts v. State, 320 So.2d 832 (Fla.2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla.2d DCA 1975); and Johns......
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