IN THE INTEREST OF N.C., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mere presence as a passenger in a stolen vehicle, with knowledge of its stolen status, is insufficient to convict of automobile theft.
Appellant was adjudicated delinquent for grand theft of an automobile. The court previously issued opinions, and now grants rehearing to substitute a …
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PER CURIAM.
Sua sponte we grant rehearing and substitute the following for our previous opinions:
We reverse appellant’s adjudication of delinquency for grand theft of an automobile. Appellant’s “mere presence as an after-acquired passenger in a vehicle, with knowledge that it has been stolen, [was] insufficient to convict [him] of [automobile] theft.” State v. G.C., 572 So. 2d 1380, 1382 (Fla.1991).
Although section 924.34 of the Florida Statutes (1989) gives an appellate court the authority to direct a trial court to enter judgment for a lesser offense, the supreme court recently held in Gould v. State, 577 So. 2d 1302 (Fla.1991), that the section only applies to category one lesser included offenses.1 It rejected the argument that the section also includes category two lesser included offenses.2 Id. at 1304. The Schedule of Lesser Included Offenses does not list a category one lesser offense for the charged offense of grand theft — third degree. Fla.Std. Jury Instr. (Crim.) 3/89, p. 293. Accordingly, we remand with directions to the trial court to discharge appellant.
REVERSED AND REMANDED WITH DIRECTIONS.
DOWNEY, GLICKSTEIN and GARRETT, JJ., concur. . Offenses necessarily included in the offense charged, which will include some lesser degrees of offenses. Comment on Schedule of Lesser Included Offenses, Fla.Std. Jury Instr. (Crim.) 3/89, p. 283.
. Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses. Comment on Schedule of Lesser Included Offenses, Fla.Std. Jury Instr. (Crim.) 3/89, p. 283.
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State v. Sigler, 967 So. 2d 835 (Fla. 2007)…. G.C., 572 So. 2d 1380 (Fla.1991), a case where we affirmed an adjudication for trespass in a conveyance, under similar circumstances. The Second District certified conflict between its decision and the Fourth District’s decision in N.C. v. State, 581 So. 2d 647 (Fla. 4th DCA 1991). The Fourth District in N.C. followed this Court’s Gould decision and held an appellate court could only direct adjudication for a necessarily lesser-included offense not a permissive lesser-included offense. On review, while fin…
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I.T. v. State, 694 So. 2d 720 (Fla. 1997)…PER CURIAM. We have for review the decision in I.T. v. State, 657 So. 2d 1241 (Fla. 2d DCA 1995), which the district court of appeal certified to be in conflict with the opinion in N.C. v. State, 581 So. 2d 647 (Fla. 4th DCA 1991). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Petitioners I.T. and J.J., both juveniles, argue that because their adjudications of delinquency were not supported by the facts in their case, it was improper for the distri…1 / 3
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Paige v. State, 641 So. 2d 179 (Fla. 5th DCA 1994)…o enter judgment for the lesser degree of the offense or for the lesser included offense. This section applies to offenses divisible into degrees or to necessarily included lesser offenses. Gould v. State, 577 So. 2d 1302 (Fla.1991); N.C. v. State, 581 So. 2d 647 (Fla. 4th DCA 1991); Shaara v. State, 581 So. 2d 1339 (Fla. 1st DCA 1991). To be a necessarily included lesser offense, all of the elements of the lesser offense must be included in the charged offense so that the burden of proof as to the charged c…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. G.C., 572 So. 2d 1380 (Fla. 1991)
- Buckley v. State, 577 So. 2d 1302 (Fla. 1991)