Opinion
No. 74-1402.
October 24, 1975.
Appeal from the Circuit Court, Broward County, Stephen R. Booher, J.
Joe L. McClung of John B. Gregory, Jr., Associates, Fort Lauderdale, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was convicted of grand larceny as a result of an information charging essentially that he unlawfully took from the possession of the true owner money in excess of $100 belonging to Gerry Weeks, in that appellant obtained such property by fraudulent representation and with intent to permanently deprive Gerry Weeks of her property contrary to § 811.021(1)(a).
The proof at trial showed that Gerry Weeks had, pursuant to a contract, paid appellant $1,000 to perform certain work on her home. After cashing Weeks's check appellant never did any work nor was Weeks able to even contact appellant for a long period of time. However, the record is devoid of any proof of a false representation of a past or existing fact. Accordingly, our decision in Waterman v. State, Fla.App., 317 So.2d 469, opinion filed August 15, 1975, is completely dispositive of this case.
Since the evidence did not support the allegations of the information, the trial court erred in denying appellant's motion for a judgment of acquittal. Thus, it is unnecessary for us to treat the other suggested appellate points. However, in passing we would once again call attention to the lack of propriety in some of the prosecutor's comments in his closing argument. In this regard see Thompson v. State, Fla. App. 1970, 235 So.2d 354.
Reversed and remanded with directions to discharge appellant.
CROSS and MAGER, JJ., concur.