Stewart v. State
| Decision Date | 14 June 1966 |
| Docket Number | No. H--9,H--9 |
| Parties | Raymond Terrell STEWART, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Howell, Dawson, Galant, Maddox & Sulik, Jacksonville, for appellant.
Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for appellee.
The petitioner for a writ of certiorari seeks our review of an order entered by the Circuit Court for Duval County affirming a judgment of the Criminal Court of Record of that county adjudging him guilty of the misdemeanor of using a motor vehicle without the owner's consent.
The petitioner was tried by the latter court for the offense charged in the 'Amended Information for Larceny of Motor Vehicle,' filed by the County Solicitor of the said county, charging that the petitioner on November 3, 1963, 'did unlawfully, take, steal and carry away one certain motor vehicle, to-wit: a gasoline propelled 1964 Chevrolet, the property of Lee R. Conner, a further description of which is to the Solicitor unknown.' In its verdict the jury found the petitioner 'Guilty of Using Motor Vehicle Without that Owner's Consent.' The petitioner had offered no evidence at the trial but had requested that the trial court 'charge the Jury on the lesser offense of using the car without the owner's consent.' The court did so and, as stated above, the jury found the petitioner guilty of the said lesser offense. In its judgment the trial court found the petitioner guilty of that lesser offense and sentenced him to imprisonment in the county jail at hard labor for a term of six months. This judgment was appealed by the petitioner to the Circuit Court for Duval County, which affirmed the judgment. Thereafter, the petitioner duly filed his petition in our court for a writ of certiorari to review the said Circuit Court's judgment of affirmance.
The principal question raised for our determination in these certiorari proceedings is whether the offense of which the petitioner was found guilty ('using' the vehicle without the owner's consent) is a lesser included offense within the offense charged by the County Solicitor in the amended information, which we quoted from above.
The said amended information charged the petitioner with commiting the felony described in Section 811.20, Florida Statutes, F.S.A. which reads as follows:
'811.20 Larceny of automobiles.--The larceny of any automobile, locomobile, motorcycle, or other like vehicle propelled by electricity, gasoline or kerosene in this state, shall be deemed a felony; and any person convicted thereof shall be punished by imprisonment in the state prison for a term not exceeding five years, or by fine not exceeding five thousand dollars.'
The misdemeanor of which the petitioner was found guilty by the jury and adjudged guilty by the trial court, is thus described in Section 811.21:
'Nothing in this section shall be construed as to apply to any case where the taking of the property of another is with intent to steal the same, or when it is taken under a claim or right, or with the presumed consent of the owner or other person having the legal control, care or custody of the same.'
The crime declared in the justquoted statute seems to us to be a lesser included offense within the crime of larceny of automobiles as described in the above-quoted Section 811.20. The language in the second paragraph of Section 811.21 indicates that that statute is designed to cover the situation when the taking or use of a motor vehicle is without any intent to steal, which is an essential element of the crime of larceny. Another difference will be noted between the two statutes--Section 811.21 contains nothing with regard to the kind of fuel used by the vehicle in question.
The general rule concerning lesser included offenses under the common law and the various state statutes is well stated in 27 American Jurisprudence, Indictments and Informations, Sec. 105, page 665, as follows:
This general rule is operative in Florida not only under the common law but also by virtue of Sections 919.14 and 919.16, Florida Statutes, F.S.A., which provide:
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Lakeysha P., In re
...an "included offense" of larceny, having all the elements of larceny except the intent to steal. 388 P.2d at 111. In Stewart v. State, 187 So.2d 358 (Fla.Dist.Ct.App.1966), the issue was whether the Florida Unauthorized Use law was a lesser included offense within the crime of automobile la......
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State v. Seiber, 11699
...363 (1967); Henry v. State, 273 Md. 131, 328 A.2d 293 (Ct. of App.1974).Contra, State v. Eyle, 236 Or. 199, 388 P.2d 110 (1963); Stewart v. State, 187 So.2d 358 (Fla.Ct. of App.1966); Commonwealth v. Nace, 222 Pa.Super. 329, 295 A.2d 87 (1972); State v. Hawkins, 203 N.W.2d 555 (Iowa 1973); ......
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Wright v. State
...is a felony under F.S. § 811.20 F.S.A. See the scholarly opinion of Judge Donald Carroll of the First District Court in Stewart v. State, Fla.App.1966, 187 So.2d 358, with the Rationale of which we Ordinarily, appeals in misdemeanor cases do not come to this District Court of Appeal, but go......
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Little v. State
...offenses. On appeal, the District Court affirmed, citing Hand v. State, 188 So.2d 364 (1st D.C.A.Fla.1966) and Stewart v. State, 187 So.2d 358 (1st D.C.A.Fla.1966). The petitioner here claims that the decision of the District Court conflicts with the prior decision of this Court in Jimenez ......