Baxley v. StateBaxley v. State
James B. Gibson, Public Defender, and Christоpher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant Taylor.
Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appеllee.
FRANK D. UPCHURCH, Jr., Judge.
The question involved in these cases which have been consolidated for appeal is whether specific intent, i.e., the intent to permanently deprive the owner of his property, is a requisite element of grand theft pursuant to
In Faison v. State, 390 So. 2d 728 (Fla. 5th DCA 1980), this court held that the “intent to permanently deprive” was required and that an information omitting this allegation was fatally defective. See also Bell v. State, 394 So. 2d 979 (Fla. 1981); State v. Allen, 362 So. 2d 10 (Fla. 1978); Hilty v. State, 386 So. 2d 1236 (Fla. 2d DCA 1980). In Allen, the supreme court held that there was no evidence of legislative intent to eliminate specific criminal intent as an element of
This court sitting en banc follows Faison and again holds that specific intent, i.e., the intent to permanently deprive the owner of his property, is a requisite element of
The state contended that “the enactment of
We also agree with the proposition that the legislature is presumed to know its own statutes and when it enacts a new statute, it is done with that knowledge. Tamiami Trail Tours, Inc. v. Lee, 142 Fla. 68, 194 So. 305 (1940). However, we are also guided by the “general prеsumption that later statutes are passed with knowledge of prior existing laws, and a construction is favored which gives each one a field of operation, rather than have the former repealed by implication.” (citations omitted)
“An indictment or information in the language of the statute is ordinarily sufficient, except where the words of the statute do not contain all of the essential elements of the offense; but, if the statute omits an essential element, the indictment [or information] must supply it with certainty.” United States v. Randolph, 460 F.2d 367, 370 (5th Cir. 1972). In these cases, the informаtions did not allege the “intent to permanently deprive” and are therefore fatally defective.
REVERSED.
DAUKSCH, C.J., ORFINGER, and SHARP, JJ., concur.
COBB, J., dissents with opinion.
COWART, J., concurs with dissent.
COBB, Judge, dissenting.
Logically, we must either hold (1) that the enactment of the omnibus theft statutе1 in 1977 by implication repealed
The crime of theft, whether it be a felony or misdemeanor, is now defined by thе 1977 act, which has the following section:
812.014 Theft. —
(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent:
(a) To deprive the other person of a right to the property or a benefit therefrom.
It is patently clear that one who knowingly takes the motor vehicle of another, even without any intent to permanently deprive the owner of the property, fits the above definition. The temporary loss of the vehicle deprives the owner of a right to the property and a benefit from it. Indeed,
The fact that permanent deprivation was the prior criterion which differentiated the crime of larceny from the misdemeanor offense of unauthorized use does not render it immutable and immune from legislative revision. In Bell v. State, 394 So. 2d 979 (Fla. 1981), which led this court astray in Faison v. State, 390 So. 2d 728 (Fla. 5th DCA 1980),
In holding that specific intent was still a requisite element of the crime of robbery, Bell did not, in my view, intend to adoрt for all time to come the parenthetical definition of specific intent incorporated in the certified question. That was not the question nor the issue before thе Bell court.
In the earlier case of State v. Allen, 362 So. 2d 10 (Fla. 1978), the Florida Supreme Court held that the omission of the word “unlawful” in the 1977 theft statute did not evince a legislative intent to eliminate specific criminal intent as an element of the offense. Nothing in the Allen case requires a construction that the criminal intent in the 1977 theft statute is the intent to permanently deprive the owner of his property as oppоsed to the correct interpretation: the specific intent to steal. See Fountain; Montsdoca.
In Faison, this court observed that during the 24-year period prior to 1975, “an essential element of larceny was the intent to permanently deprive the owner.” Two cases were cited in support of this proposition: American Fire & Cas. Co. v. Sunny South Aircraft Serv. Inc., 151 So. 2d 276 (Fla. 1963), and Wethington v. State, 159 Fla. 670, 32 So. 2d 458 (Fla. 1947).
The American Fire case contains the following language:
It is our conclusion that the substance of the definition [of felonious theft] ... should be held to mean that the intention to steal, that is to feloniously deprive the owner permanently of his property, a question of fact to be determinеd by the jury, is an essential element in the crime of larceny. A taking of the personal property of another, without his consent, with the intent to permanently deprive the ownеr thereof, or the intentional dealing with the property of another, without his consent, in such a manner as to create an unreasonable risk of permanent loss, constitutes an intent to steal.
This enunciated definition of felonious theft was changed by the clear wording and intent of the 1977 Florida Legislature so that any unauthorized use, disposition or transfer of the property of another which deprives that person of a benefit therefrom now fits within that definition. Faison simply refuses to recognize the legislative prerogative to define the crime of theft. It is supported in this refusal by the recent Second District Court of Appeal case of Hilty v. State, 386 So. 2d 1236 (Fla. 2d DCA 1980), review denied, 392 So. 2d 1379 (Fla. 1981).
The instant case reaches the anomalous result thаt informations which track the language of the theft statute verbatim are fatally deficient because of the absence of an allegation pertaining to permаnent deprivation. I would hold that such an allegation is no longer necessary since October 1, 1977, and that