Opinion
Nos. 65-720, 65-765.
April 19, 1966.
Appeal from the Criminal Court of Record for Dade County, Gene Williams, J.
Robert L. Koeppel, Public Defender, and Phillip A. Hubbart, Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Barry N. Semet, Asst. Atty. Gen., for appellee.
Before HENDRY, C.J., and CARROLL and BARKDULL, JJ.
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 misdemeanor.
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 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.
"IT IS FURTHER CONSIDERED, ORDERED AND ADJUDGED that you be imprisoned by confinement at hard labor in the State Penitentiary for a term of Three (3) years, sentence to begin immediately at the expiration of the sentence imposed in Case No. 65-3487 by this Court."
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.