KEVIN CALLAHAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE/CROSS-APPELLANT
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The court held that burning to defraud an insurer is not a lesser included offense of arson, and the trial court erred in imposing sentence for only arson.
Appellant was convicted of arson and burning to defraud an insurer. The trial judge sentenced him only for arson, finding the latter a lesser included…
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SCHEB, Acting Chief Judge.
Appellant, Kevin Callahan, challenges the trial court’s denial of his motion for mistrial. The state cross-appeals the trial court’s failure to sentence appellant for the crime of burning to defraud an insurer. We reject appellant’s contention but we find merit to the state’s cross-appeal.
Appellant was convicted of arson, a second degree felony, and burning to defraud an insurer, a third degree felony. The trial judge found that burning to defraud an. insurer is a lesser included offense of arson, so he imposed a sentence for only arson.
The test for determining whether a less serious offense is included in a more serious offense is whether “all of the elements required to be proven to establish the former are also required to be proven, along with more, to establish the latter.” Borges v. State, 415 So. 2d 1265, 1267 (Fla.1982). In Florida, an analysis of the statutory elements is made to determine whether a crime is a lesser included offense. State v. Rodriquez, 500 So. 2d 120 (Fla.1986).
Burning to defraud an insurer, which the trial judge considered a lesser offense, is proscribed by section 817.233, Florida Statutes (1985). It requires proof of insurance and intent to injure or defraud the insurer, elements not found in the arson statute, section 806.01, Florida Statutes (1985). Therefore, burning to defraud an insurer is not a lesser included offense of arson. The trial judge should have imposed sentences for both crimes. See § 775.021(4), Fla.Stat. (1985).
We affirm the appellant’s conviction but vacate his sentences and remand for further proceedings consistent with this opinion.
SCHOONOVER and FRANK, JJ., concur.
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Citator
Cited By
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Berry v. State, 566 So. 2d 22 (Fla. 1st DCA 1990)…y, we find no error in the trial court’s denial of an instruction on the offense of burning to defraud an insurer based on section 817.233. This offense was not charged, and it is not a lesser-ineluded offense of the arson charge. Callahan v. State, 504 So. 2d 434 (Fla. 2d DCA 1987). AFFIRMED. ERVIN and WENTWORTH, JJ., concur. . All references to statutes in this opinion will be to Florida Statutes (1985). . See also, State v. McBride, 519 So. 2d 716 (Fla. 1st DCA 1988), wherein this court stated, in dict…
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Bell v. State, 650 So. 2d 1032 (Fla. 5th DCA 1995)…was an offense wholly included within the crime of burning to defraud. Burning to defraud is not a lesser included offense of arson. Berry v. State, 566 So. 2d 22, 24 (Fla. 1st DCA 1990), review denied, 576 So. 2d 284 (Fla.1991); Callahan v. State, 504 So. 2d 434, 435 (Fla. 2d DCA 1987). Therefore, Bell was properly convicted of both second degree arson and burning to defraud an insurance company. REVERSED and REMANDED. W. SHARP and DIAMANTIS, JJ., concur. . § 806.01(2), Fla.Stat. (1991). . § 817.233, Fl…
Authorities Cited
- Borges v. State, 415 So. 2d 1265 (Fla. 1982)
- State v. Rodriquez, 500 So. 2d 120 (Fla. 1986)