Rivers v. State, W-57
| Decision Date | 14 January 1975 |
| Docket Number | No. W-57,W-57 |
| Citation | 307 So.2d 826 |
| Parties | Adam RIVERS, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida 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 Richard W. Prospect, Asst. Atty. Gen., for appellee.
This is an appeal from judgment and sentence by which appellant was convicted of breaking and entering with intent to commit the felony, grand larceny.
Appellant contends the evidence was insufficient to establish his intent to steal property of a value of more than $100. We disagree. Appellant and others were apprehended on a Sunday night in the Florida Power and Light Building at Daytona Beach before they had actually taken anything. Appellant at the time had a prying tool in his hand and the door into the area where the night deposit box is located had been jimmied open. This box contained cash and checks deposited from the outside by customers paying their bills. The box had not been opened since the Friday afternoon prior to the burglary and it would have contained all deposits made between then and the Sunday night when the burglary occurred. Although the exact amount of the deposit in the box at the time of the burglary (approximately 11:00 p. m.) is not known, the box contained $3,374.61 ($1,214.42 in cash and $2,160.19 in checks) when opened the following morning at 7:00 a. m. The record is adequate to show that at the time of the burglary there was in excess of $100 in the deposit box, the safe and in movable equipment in the building and that appellant and his accomplices had the intent to steal in excess of that amount. See Clifton v. State, 26 Fla. 523, 7 So. 863; Rebjebian v. State, Fla., 44 So.2d 81.
Appellant further contends that the trial judge's refusal to charge the jury on trespass as a lesser included offense was error. We disagree. The request for instruction by appellant's counsel was as follows:
'We would request the court to instruct on what we feel should be the lesser included charge of trespass and cite the case of Edward (Edwards) v. State, (Fla.App.), 213 Southern 2nd, 274 and feel that there is evidence in view of the fact that the defendant was on heroin that a trespass may have occurred.'
The case cited above by appellant has no relation to the question of whether or not a trespass charge should be given as a lesser included offense to breaking and entering with intent to commit a felony. The various and numerous trespass statutes are included in Chapter 821, Florida Statutes. Appellant did not advise the trial judge which of these trespass statutes he considered to be a lesser included offense to the offense charged, but simply threw the whole question in the lap of the judge at the trial conference for him to determine for himself which, if any, of these trespass statutes was a lesser included offense. We consider the language of our sister court in York v. State, Fla.App. 4th, 232 So.2d 767 to be appropriate on this point. There defense counsel had made a blanket objection to instructions given and not given by the court. The appellate court said:
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Andreasen v. State
...prove that the property stolen had a value in excess of $100. Nelson v. State, 127 Fla. 677, 173 So. 841 (Fla.1937); Rivers v. State, 307 So.2d 826 (Fla. 1st DCA), cert. denied, 316 So.2d 285 (Fla.1975). The sole remaining inquiry, and the most critical one, is whether or not the evidence p......
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Jenkins v. State
...may or may not include the use of a firearm or other dangerous weapon, § 810.02(3). The 1985 schedule cites Rivers v. State, 307 So.2d 826 (Fla. 1st DCA 1975), as direct authority, and Mobley v. State, 327 So.2d 900 (Fla. 3d DCA 1976), as contrary authority. However, Rivers does not stand f......
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S.H. v. State, 3D18-365
...and to preserve the issue for intelligent review on appeal." Castor v. State, 365 So.2d 701, 702 (Fla. 1978) (citing Rivers v. State, 307 So.2d 826 (Fla. 1st DCA 1975), cert. denied, 316 So.2d 285 (Fla.1975) ); see also York v. State, 232 So.2d 767 (Fla. 4th DCA 1969). As the Florida Suprem......
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Mobley v. State, 75--600
...has failed to show the trial court abused its discretion in failing to give the jury instruction requested by him. See Rivers v. State, Fla.App.1975, 307 So.2d 826. We have considered the record, all points in the briefs, and arguments of counsel in the light of the controlling principles o......