Footman v. StateFootman v. State
The appellant, Charlie Prince Footman, Jr., was informed against. In sеparate counts he was charged with the crimes of (1) breaking and entering a commercial building with intent to commit a felony thеrein, and (2) grand larceny. When arraigned he pleaded not guilty. Trial was had before a jury in the Polk County Criminal Court of Record, and the defendant was found guilty. Thereupon the court entered its judgment оf guilt on the two charges and imposed two sentences of сonfinement in the state penitentiary for periods of five (5) yеars for each count. The sentences are to run consecutively.
The sole question raised by this appeal is whether the trial court erred in imposing consecutive sentencеs of five (5) years for each of the two counts containеd in the information.
Appellant contends that the two counts оf the information were but separate facets of a singlе criminal transaction, as distinguished from counts charging separate and distinct, though perhaps kindred crimes. He further argues that the law in Florida is well settled that when an information contains more than one count, and each is a facet or phase of the same transaction, there can only be one sentence imposed; and that sentence should be imposеd on the highest offense charged. Citing for authority Wyche v. State, Fla.App. 1965, 178 So.2d 875; Wells v. State, Fla.App. 1964, 168 So.2d 787; Sharon v. State, Fla. App. 1963, 156 So.2d 677; Bullard v. State, Fla.App. 1963, 151 So.2d 343; State v. Schagg, Fla.App. 1959, 115 So.2d 783; and Norwood v. State, Fla. 1956, 86 So.2d 427.
We would not quarrеl with the above proposition of law as stated by appellant when used in the proper context. Whether the proposition can properly be utilized in the case sub judicе, however, is bottomed on the more basic question of whether breaking and entering with intent to commit a felony and grand larcеny are facets of the same criminal transaction.
Our Supreme Court in Steele v. Mayo, Fla. 1954, 72 So.2d 386, upheld the sentencing of a defendant where he had been sentеnced to five years for breaking and entering and two years for larceny. In doing so it stated:
“It is also contended that the chаrge of breaking and entering is inconsistent with the charge of larсeny and that both cannot stand.
“There is no merit to this contentiоn. Section 810.02 F.S.A. amended the common law to comprehеnd a situation like we are confronted with here. The information did nothing more than present two aspects of the same сriminal transaction and petitioner was sentenced five years for breaking and entering and two years on the larceny сharge.”
The two statutes with which we are confronted in this case are:
Affirmed.
LILES, C.J., and ALLEN and PIERCE, JJ., concur.