Foster v. StateFoster v. State
Lead Opinion
Appellant seeks reversal of his conviction of breaking and entering with intent
to commit a felony and possession of burglary tools and his sentence of fifteen years on the first count and five years on the second. Appellant contends, inter alia, that the court erred in imposing concurrent sentences for the two offenses since each count involved but a facet or phase of the same transaction. In support of his contention, appellant cites Yost v. State,
The Florida Supreme Court, in rejecting a contention that larceny and receiving or
. . Both counts of the information are complete and perfect within themselves; each of them, independently of the other, completely and fully charging its own respective crime. . . .” Washington v. State,51 Fla. 137 ,40 So. 765 .
The Second District Court of Appeal in Footman v. State,
Therefore, we hold the principle enunciated in Yost, supra, Walker, supra, and Cone and Sanders, supra, is not applicable to the case at bar.
Appellant also contends that the judgment should be reversed for lack of sufficient evidence. We find this contention without merit.
Accordingly, the judgment and sentence appealed herein are affirmed.
Concurrence in Part
(concurs in part and dissents in part) :
I agree with the portion of the majority opinion that holds that the evidence was sufficient to sustain the conviction, as to breaking and entering and possession of burglary tools.
I disagree with the holding of the majority opinion that the trial court was correct in imposing two separate sentences.
In this case, in moments after the appellant, defendant below, was seen entering or allegedly entering the rooms, and while waiting for the police to arrive, the screwdriver ápparently fell from appellant’s clothes. The testimony to bolster the State’s case of breaking and entering was to the,effect that this particular screwdriver, with blue paint from the room doors still on it, was the one being used by the appellant in trying to break open the room doors. The very testimony of the State’s witnesses conclusively proves that the use of the same screwdriver was tied into the same criminal episode and therefore the same was a facet of the single transaction and falls directly within the holding of the Supreme Court of Florida in the case of Cone and Sanders v. State of Florida, (Case #42,760) (Opinion filed March 7, 1973), wherein it is held that where the charges are armed robbery and display of using a firearm during the commission of a felony, were facets of the same transaction and therefore bore only one sentence. In the case, sub judice, the screwdriver was being used in the breaking and entering. Without the screwdriver, based on the evidence, there could or would not have been any breaking or entering under the facts of this case. Therefore, while I think the evidence was sufficient to support the guilty verdict, it was error for the trial court to adjudge the defendant guilty of two offenses and to enter two sentences thereon. Since each of the offenses constitutes a facet of single transaction, and since the breaking and entering is the more serious or higher offense, the sentence imposed for possession of the burglary tool, to wit: the screwdriver, should be vacated and set aside.