Priester v. State, 73--1277
| Decision Date | 17 May 1974 |
| Docket Number | No. 73--1277,73--1277 |
| Citation | 294 So.2d 421 |
| Parties | Charles PRIESTER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, Kenneth L. Scherer, Asst. Public Defender, and H. Joseph McGuire, Legal Intern, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Frank B. Kessler, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was charged under F.S. Section 810.02, F.S.A., with the crime of breaking and entering a building with intent to commit a felony therein, to-wit: grand larceny. The jury returned its verdict finding him guilty of grand larceny, for which offense appellant was adjudged guilty and sentenced.
On this appeal the sole point raised by appellant is that the evidence is insufficient to sustain a finding that the value of the property stolen was $100.00 or more, essential for a conviction of grand larceny under F.S. Section 811.021(2), F.S.A. Upon an examination of the record, we conclude that the evidence was sufficient in this respect.
Appellant does not argue the matter, but we take note of the fact as fundamental error that he has been convicted of a crime with which he was not charged, and which is neither a lesser included offense, nor a lesser degree, of the crime charged. Appellant was charged with Burglary, i.e., breaking and entering with intent to commit a felony, to-wit: grand larceny. He was convicted of Larceny which is a separate and distinct offense and not a lesser included offense of the crime charged. State v. Conrad, Fla.App.1971, 243 So.2d 174. On an identical factual situation the Second District Court of Appeal similarly held in the case of Ashley v. State of Florida, 292 So.2d 616, opinion filed April 3, 1974.
The jury's verdict acquitted him of burglary. The judgment is reversed with directions that appellant be discharged from the crime charged in the information.
Reversed.
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Corn v. State, 46922
...Rodgers v. State, 325 So.2d 48 (Fla.App.2d Dist. 1975); Causey v. State, 307 So.2d 197 (Fla.App.2d Dist. 1975); Priester v. State, 294 So.2d 421 (Fla.App.4th Dist. 1974); Ashley v. State, 292 So.2d 616 (Fla.App.2d Dist. The majority states, 'It appears, however, that the judgment of the low......
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Ray v. State
...District Court of Appeal reached the same conclusion in Falstreau v. State, 326 So.2d 194 (Fla. 4th DCA 1976), and Priester v. State, 294 So.2d 421 (Fla. 4th DCA 1974). All of these cases speak of fundamental error; in other cases, erroneous lesser included instructions have been found to b......
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State v. Dye, 49579
...(Fla.2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla.2d DCA 1975); Ashley v. State, 292 So.2d 616 (Fla.2d DCA 1974); Priester v. State, 294 So.2d 421 (Fla.4th DCA 1974). In the instant case, the information is defective because it does not allege that "the offender defied an order to leav......
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Carter v. State
...DCA 1975); O'Neal v. State, 308 So.2d 569 (Fla.2d DCA 1975); Causey v. State, 307 So.2d 197 (Fla.2d DCA 1975); and Priester v. State, 294 So.2d 421 (Fla.4th DCA 1974). These cases, however, from the Second and Fourth District Courts have been superseded by 1978 and 1979 cases from those dis......