Skov v. State, 72--483
| Decision Date | 01 March 1974 |
| Docket Number | No. 72--483,72--483 |
| Parties | Roy Einer SKOV, a/k/a William Johnson, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
William T. Fussell, Tampa, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
The appellant was convicted of the offenses of breaking and entering a phone booth with intent to commit a misdemeanor, to-wit, petit larceny (court one) and of possession of burglary tools (count two).
On similar facts, the Supreme Court in State v. Jackson, Fla.1973, 281 So.2d 353, held that a conviction for breaking and entering a phone booth with intent to commit a felony could not be sustained because the implied consent to enter had not been negated.
The only difference between Jackson and the instant case is that here the appellant was charged with breaking and entering with intent to commit a Misdemeanor.
One who 'breaks and enters' or 'enters without breaking' with intent to commit a misdemeanor may be convicted under F.S. 810.05, F.S.A. The appellant could have been convicted under F.S. 810.05, F.S.A., for entering without breaking. State v. High, Fla.1973, 281 So.2d 356. The State chose to charge him with breaking and entering, but, in view of Jackson, could not convict him of that offense.
One cannot be charged in an indictment or information with one offense and convicted of another. Perkins v. Mayo, Fla.1957, 92 So.2d 641. As stated in Long v. State, Fla.1957, 92 So.2d 259:
The appellant's contentions with reference to his conviction for possession of burglary tools is totally without merit because a policeman testified that he watched the appellant prying open the money box on the telephone.
The judgment of conviction under count one is reversed. The judgment of conviction under count two is affirmed.
ON PETITION FOR REHEARING
In its petition for rehearing, the State, for the first time, calls attention to our previous decision of ...
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Smith v. State
...lesser crime in a Carawan situation. In Isaac v. State, 134 So.2d 38, 39 (Fla. 2d DCA 1961), overruled on other grounds, Skov v. State, 292 So.2d 64 (Fla. 2d DCA), cert. denied, 298 So.2d 165 (Fla.1974), the court stated: "The character of the offense is determined by the nature of the puni......
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State v. Blair
...a case where the defendant entered a telephone booth and pried open the coin box. State v. High, Fla., 281 So.2d 356. But see Skov v. State, Fla.App., 292 So.2d 64. A similar result obtained in State v. Gregor, 11 Wash.App. 95, 521 P.2d 960, where the owner arguably gave consent to enter, k......
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O'Neal v. State
...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 break......
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Hightower v. State
...Relying upon Pettigrew v. State, 316 So.2d 69 (2nd DCA Fla.1975); O'Neal v. State, 308 So.2d 569 (2nd DCA Fla.1975), and Skov v. State, 292 So.2d 64 (2nd DCA Fla.1974), he contends that this is fundamental error. The cited cases have been expressly overruled. See Roberts v. State, 320 So.2d......