LOSKO BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in failing to make a specific finding that an enhanced penalty was necessary for public protection, and that the conviction for grand theft should be affirmed.
[1] A statute defining theft as obtaining or using, or endeavoring to obtain or use, property of another does not distinguish between the completed crime and the attempt.
[2] An enhanced penalty sentence requires a finding that the extended term is necessary for the protection of the public.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of grand theft. The trial court imposed an enhanced penalty sentence without specifically finding it necessary for public prot…
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DAUKSCH, Chief Judge.
This is an appeal from a conviction and sentence in a grand theft case. Appellant alleges two errors, the first of which is the court’s failure to instruct the jury as to the alleged lesser included offense of attempted grand theft. The crime charged is “[a] person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or use, the property of another . . Fla.Stat. 812.014(1) (1979). This statute is different from the previous grand larceny statute in that no distinction is made between the theft and the “endeav-or.” We agree “endeavor” means “attempt” and the law now makes no distinction between the actual stealing and the attempt to steal and punishes both the same. State v. Tomas, 370 So. 2d 1142, 1143 (Fla.1979); State v. Allen, 362 So. 2d 10, 12 (Fla.1978). Therefore, we affirm the conviction.
The second attack on appeal concerns the trial court’s failure to follow the statutory guidelines in passing an enhanced penalty sentence upon the appellant. Fla. Stat. 775.084 (1979). We agree. The trial court failed to specifically find the enhanced penalty was necessary for the protection of the public. Just because the appellant was previously convicted of a felony within five years of the commission of the crime in this case does not mean he automatically is subject to a greater term of years in prison. It must be pleaded, proved and found that the extended term in prison is necessary for the protection of the public. Grey v. State, 362 So. 2d 425 (Fla. 4th DCA 1978).
The findings of fact to support the enhanced penalty need not be in writing but must be on the record in order to afford review. King v. State, 369 So. 2d 1031 (Fla. 4th DCA 1979). Upon resentencing, the trial judge cannot sentence appellant to an indeterminate sentence, as he did before, because the legislature has disallowed such a sentence in the punishment of habitual criminals. Fla.Stat. 921.18 (1979).
Judgment affirmed, sentence reversed and remanded for resentencing.
ORFINGER and COBB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Sykes, 434 So. 2d 325 (Fla. 1983)…e requisite criminal intent, the legislature has negated any intention of allowing the general attempts statute3 to operate with reference to them. Therefore, there is no such offense in Florida as attempted second-degree grand theft. Bell v. State, 382 So. 2d 107 (Fla. 5th DCA 1980); McIntyre v. State, 380 So. 2d 1064 (Fla. 2d DCA 1980); Miles v. State, 374 So. 2d 1167 (Fla. 2d DCA 1979). The jury should not have been instructed that attempt was a lesser included offense, nor should they have been given the…
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Jones v. State, 466 So. 2d 301 (Fla. 3d DCA 1985)…d larceny statute in that no distinction is made between the theft and the ‘endeavor.’ ‘[E]ndeavor’ means ‘attempt’ and the law now makes no distinction between the actual stealing and the attempt to steal and punishes both the same.” Bell v. State, 382 So. 2d 107, 108 (Fla. 5th DCA 1980). As the defendant Jones was charged herein with an “endeav- or” to commit a grand theft, this was equivalent to charging him with attempted grand theft. There are two essential elements to the crime of attempted grand theft…
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Eichhorn v. State, 386 So. 2d 604 (Fla. 5th DCA 1980)…nced penalty, and it must appear by a preponderance of the evidence that the enhanced sentence is necessary to protect the public from the criminal activity of the defendant. Jones v. State, 384 So. 2d 956 (Fla.5th DCA June 18, 1980); Bell v. State, 382 So. 2d 107 (Fla.5th DCA 1980). However, the trial judge did not state in the record why he was sentencing the defendant to the greater term. Section 775.084, Florida Statutes (1979) subsection (3) provides: [*605] In a separate proceeding, the court shall dete…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Allen, 362 So. 2d 10 (Fla. 1978)
- Petty v. State, 369 So. 2d 1031 (Fla. 4th DCA 1979)
- State v. Tomas, 370 So. 2d 1142 (Fla. 1979)
- Grey v. State, 362 So. 2d 425 (Fla. 4th DCA 1978)