State v. Fitz, 36230

• Decision Date: 04 October 1967
• Docket Number: No. 36230,36230
• Parties: STATE of Florida, Petitioner, v. Henry FITZ, Respondent.
• Court: Florida Supreme Court

Page 841

202 So.2d 841

STATE of Florida, Petitioner, v. Henry FITZ, Respondent.

No. 36230.

Supreme Court of Florida.

Oct. 4, 1967.

Earl Faircloth, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for petitioner.

John D. Buchanan, Jr., Asst. Public Defender, for respondent.

DREW, Justice.

By conflict certiorari petitioner seeks review of a decision of the District Court of Appeal, ¹ First District, reversing in part a two-year sentence for the offense of attempt to violate Sec. 810.05, which provides a penalty of imprisonment 'not exceeding five years' for breaking and entering with intent to commit a misdemeanor.

The applicable statute, F.S. Sec. 776.04, F.S.A., authorizes graduated sentences in part as follows: five years if the offense attempted is 'punishable By imprisonment * * * for life, or For five years or more'; one year if the offense attempted is 'punishable by imprisonment * * * for a term of less than five years.' (e.s.)

The appellate court in this case held the latter provision applicable, resulting in a decision that the crime attempted (punishable by sentence 'not exceeding five years') was one punishable by 'a term of less than five years,' requiring that the sentence under 776.04, supra, be reduced to one year.

Certiorari has been granted because of conflict between the decision in this case and that in Edge v. State, Fla.App.2nd Dist., 170 So.2d 596. We conclude, upon consideration of the statutory language and reasoning of the opinions, that the The judgment of the appellate court is quashed and the cause remanded for the entry of an order in accordance with this opinion.

court in Edge v. State properly construed and applied the cited statutes. The offense attempted, i.e. that proscribed by Sec. 810.05, supra, may under the terms of that statute be punished by imprisonment 'not exceeding five years.' It is, therefore, an offense 'punishable by imprisonment * * * for five years' within the terms of Sec. 776.04. The penalty imposed by the trial court upon the attempt conviction in the present case was within the statutory authorization and should have been affirmed.

CALDWELL, C.J., and THOMAS, ROBERTS and THORNAL, JJ., concur.

BARNS, PAUL D. (Retired), J., concurs specially with Opinion.

ERVIN, J., dissents with Opinion.

BARNS, PAUL D., Justice (Ret.) (concurring specially):

This matter is before us on conflict certiorari, the conflict being between the decision of the lower court, Fitz v. State, Fla.App., 196 So.2d 762, and the decisions of Edge v. State, Fla.App., 170 So.2d 596, and Floyd v. State, Fla.App., 170 So.2d 599.

The respondent was convicted and sentenced to serve a two-year sentence of imprisonment upon a conviction of attempting to break and enter a building with intent to commit a misdemeanor, and petitioner urges that the maximum sentence authorized is two and one-half years and not one year as determined by the lower court.

Section 810.05, F.S.A. fixes the punishment for the basic offense for which the petitioner was convicted of the attempt to commit, which section provides:

'810.05 Breaking and entering with intent to commit a misdemeanor.--Whoever breaks and enters or enters without breaking any dwelling or store house, or any building, ship, vessel, or railroad car with intent to commit a misdemeanor, shall be punished by imprisonment in the state prison or county jail not exceeding Five years, or by fine not exceeding five hundred dollars.' (Italics supplied)

Section 776.04, F.S.A. fixes the punishment for Attempts to commit offenses as follows:

'776.04 Attempts, generally.--Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration, or is intercepted or prevented in the execution of the same shall, when no express provision is made by law for the punishment of such attempt, be punished as follows:

'(1) If the offense attempted to be committed is punishable with death, the person convicted of such attempt shall be punished by imprisonment in the state prison not exceeding ten years.

'(2) If the offense attempted to be committed is punishable by imprisonment in the state prison for life, or for Five years or more, the person convicted of such attempt shall be punished by imprisonment in the state prison not exceeding five years, or in the county jail not exceeding one year.

'(3) If the offense attempted to be committed is punishable by imprisonment in the state prison for a term of Less than five years, or by imprisonment in the county jail, Or by fine, the person convicted of such attempt shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding three hundred dollars.

'In no case shall the punishment by imprisonment exceed one-half of the greatest punishment which might have The foregoing statute seems to be comprehensive for the punishment of Attempts of all crimes, except as otherwise provided by 'express provisions'; it provides three categories measured by the extent to which the offender is 'punishable' had the attempt been completed.

been inflicted if the offense attempted had been committed.' (Italics supplied)

The first (1) category relates to such basic crimes as are 'punishable with death'.

The second (2) category relates to such basic crimes as are 'punishable by imprisonment in the state prison for life, or for five years or more'.

The third (3) category relates to such basic crimes as are 'punishable by imprisonment in the state prison for a term of less than five years, or by imprisonment in the county jail, Or by fine'. (Italics supplied)

PUNISHMENT

The...