Morrow v. State

District Court of Appeal of Florida

Morrow v. State

185 So. 2d 200, 1966 Fla. App. LEXIS 5249

CourtDistrict Court of Appeal of Florida

DecidedApril 19, 1966

DocketNos. 65-720, 65-765

StatusPublished

Cited by2 cases

This text of 185 So. 2d 200 (Morrow v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Morrow v. State, 185 So. 2d 200, 1966 Fla. App. LEXIS 5249 (Fla. Ct. App. 1966).

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Opinion

BARKDULL, Judge.

The appellant was informed against and found guilty of uttering a forged instrument, and unlawfully breaking and entering a building with intent to commit a felony, to wit: grand larceny and petit larceny. Upon this appeal, the appellant urges the insufficiency of the evidence to support the convictions.

We find the evidence sufficient to support the charge of uttering a forged instrument and, therefore, this conviction and sentence is affirmed. See: Di Bona v. State, Fla.App.1960, 121 So.2d 192; Hicks v. State, Fla.App.1962, 138 So.2d 101; Crum v. State, Fla.App.1965, 172 So.2d 24.

We affirm the conviction of breaking and entering, but it appears that the State failed to sufficiently prove intent to commit a felony and the record will only support a conviction of breaking and entering with intent to commit a misdemean- or.

^ Therefore, this conviction will be sustained, but the sentence will be set aside and the matter returned to the trial court for proper sentencing in accordance with Escobar v. State, Fla.App.1965, 181 So.2d 193.

As to the conviction of petit larceny, this is a misdemeanor and ordinarily would be reviewable in the circuit court. See: Art. V, § 6(3), Fla.Const., F.S.A. However, the trial judge had the power, under the information charging grand larceny, to make such adjudication as this is a lesser included offense. The appellant points out that the title of the information charged “Petit Larceny”. However, the body of the information clearly charged a felony by alleging the felonious taking of personal property of a value in excess of $100.00 [see: § 811.021 Fla.Stat., F. S.A.] and the court, sitting as the trier of fact, announced that it found the appellant guilty as charged. We find no error in the finding of guilt. But, as it appears that this sentence was joined with that of the breaking and entering with intent to commit a felony, which we have hereinabove set aside, we likewise vacate this sentence ¹ and return the matter to the trial court for an appropriate sentence in accordance with the statutes of this State as made and provided for petit larceny.

Therefore, for the reasons above stated, this matter is returned to the trial court for further proceedings in accordance with the above.

Affirmed in part; reversed in part, with directions.

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BARKDULL, Judge.

The appellant was informed against and found guilty of uttering a forged instrument, and unlawfully breaking and entering a building with intent to commit a felony, to wit: grand larceny and petit larceny. Upon this appeal, the appellant urges the insufficiency of the evidence to support the convictions.

We find the evidence sufficient to support the charge of uttering a forged instrument and, therefore, this conviction and sentence is affirmed. See: Di Bona v. State, Fla.App.1960, 121 So.2d 192; Hicks v. State, Fla.App.1962, 138 So.2d 101; Crum v. State, Fla.App.1965, 172 So.2d 24.

We affirm the conviction of breaking and entering, but it appears that the State failed to sufficiently prove intent to commit a felony and the record will only support a conviction of breaking and entering with intent to commit a misdemean- or.

^ Therefore, this conviction will be sustained, but the sentence will be set aside and the matter returned to the trial court for proper sentencing in accordance with Escobar v. State, Fla.App.1965, 181 So.2d 193.

As to the conviction of petit larceny, this is a misdemeanor and ordinarily would be reviewable in the circuit court. See: Art. V, § 6(3), Fla.Const., F.S.A. However, the trial judge had the power, under the information charging grand larceny, to make such adjudication as this is a lesser included offense. The appellant points out that the title of the information charged “Petit Larceny”. However, the body of the information clearly charged a felony by alleging the felonious taking of personal property of a value in excess of $100.00 [see: § 811.021 Fla.Stat., F. S.A.] and the court, sitting as the trier of fact, announced that it found the appellant guilty as charged. We find no error in the finding of guilt. But, as it appears that this sentence was joined with that of the breaking and entering with intent to commit a felony, which we have hereinabove set aside, we likewise vacate this sentence ¹ and return the matter to the trial court for an appropriate sentence in accordance with the statutes of this State as made and provided for petit larceny.

Therefore, for the reasons above stated, this matter is returned to the trial court for further proceedings in accordance with the above.

Affirmed in part; reversed in part, with directions.

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185 So. 2d 200, 1966 Fla. App. LEXIS 5249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morrow-v-state-fladistctapp-1966.

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