Roberts v. State
| Citation | 320 So.2d 832 |
| Decision Date | 24 October 1975 |
| Docket Number | 75--107,Nos. 75--106,s. 75--106 |
| Parties | Roy E. ROBERTS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James A. Gardner, Public Defender, Sarasota, Steven H. Denman, Asst. Public Defender, Bradenton, and Nevin A. Weiner, Legal Intern, Bradenton, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
Once again we are faced with the problem of one being convicted of entering without breaking with intent to commit a misdemeanor on a charge of breaking and entering with the same intent. Beginning with Skov v. State, Fla.App.2d, 1974, 292 So.2d 64, and followed in O'Neal v. State, Fla.App.2d, 1975, 308 So.2d 569, we held that such a conviction cannot stand. See also Pettigrew v. State, Fla.App.2d, 1975, 316 So.2d 69. We now find it necessary to revisit these decisions.
The accusatory pleading in the case Sub judice charged appellant with breaking and entering with intent to commit a misdemeanor, to wit: petit larceny. The jury returned a verdict of entering without breaking with intent to commit petit larceny. Clearly the jury's verdict found defendant guilty of a crime included within the offense charged by the accusatory pleading. The information charged three elements, to wit: unlawful breaking, unlawful entry and the intent to commit petit larceny. The jury found appellant guilty of two of the three elements set forth in the accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny. These two elements constitute a crime just as surely as did the three elements charged. By all standards, entering without breaking seems to meet the definition of a category (3) necessarily included offense to breaking and entering under Brown v. State, Fla.1968, 206 So.2d 377.
The problem seems to stem from the fact that both of these 'offenses' are proscribed in the disjunctive in the same section. Thus, Fla.Stat. § 810.05(1) (1973), reads as follows:
'810.05 Breaking and entering with intent to commit a misdemeanor.--
(1) Whoever breaks and enters, or enters without breaking, any dwelling, storehouse, building, ship, vessel, aircraft, or railroad car with intent to commit a misdemeanor shall be guilty of a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084.'
Hence, it is not a matter of greater vis-a-vis lesser included offenses in the sense that the lesser is considered to be an independent offense which is included within the offense defined as greater. See Isaac v. State, Fla.App.2d, 1961, 134 So.2d 38, overruled in part by Skov. We are concerned here with the Same offense which may be committed in two ways. But does this mean that one who is charged with the first alternative under the statute cannot be convicted of committing the crime in the manner described in the second alternative?
The case upon which Skov was grounded is Long v. State, Fla.1957, 92 So.2d 259. The defendant in that case was charged with unlawfully and feloniously conveying into the jail a 2 4 piece of wood which was a thing useful to aid a prisoner in making her escape. The statute under which the information was drawn read as follows:
'Whoever conveys into a jail or other like place of confinement, any disguise, instrument, tool, weapon or other thing adapted or useful to aid a prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, or, by any means whatever, aids or assists such prisoner in his endeavors to escape therefrom, whether such escape is effected or attempted or not; . . .'
The court observed that there may have been sufficient evidence to sustain a conviction of aiding or assisting the prisoner to escape, but reversed because of insufficient evidence upon which to find the defendant guilty of conveying the 2 4 into the jail.
The pertinent statutes in both Long and Skov describe two ways in which the same offense can be committed. But there is a distinction between these statutes. Under the Skov statute every element necessary to convict under the second alternative...
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