Spencer v. State

Full title: VERDALEN C. SPENCER, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, Fourth District

Date published: Jan 29, 1969

217 So. 2d 332 (Fla. Dist. Ct. App. 1969)

Opinion

No. 1346.

November 26, 1968. Rehearing Denied January 29, 1969.

Appeal from the Circuit Court for Martin County, C. Pfeiffer Trowbridge, J.

Robert J. Randolph, Stuart, for appellant.

Earl Faircloth, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.

REED, Judge.

The appellant, Verdalen C. Spencer, was charged by an information with grand larceny under F.S. 1965, Section 811.021 (2), F.S.A. The information alleged that he stole copper wire belonging to Florida Power and Light Company on 29 July 1966 of a value in excess of $100.00.

The appellant was tried in Circuit Court in Martin County, Florida, on 7 February 1967, and a jury verdict of guilty of grand larceny was returned. A motion for a new trial was denied. This appeal is from the judgment and sentence of the circuit court entered on the verdict.

The issue here is the sufficiency of the evidence to support the verdict.

There is competent substantial evidence in the record, some from eye witnesses, to support the jury's conclusion that the appellant with others stole wire belonging to Florida Power and Light Company which cost $.572 per foot and, therefore, was guilty of larceny in some degree. For purposes of classifying the larceny as grand or petty, the value to be used is normally market value at the time of the theft. (See authorities cited in Spencer v. State, 217 So.2d 331, District Court of Appeal, Fourth District, opinion rendered November 26, 1968.) In such cases an essential element of the crime of grand larceny is the taking of property having a market value of $100.00 or more at the time of the theft. Here there was no evidence that the property taken had a market value of $100.00 or more at the time of the theft. For this reason the conviction for grand larceny is in error. Other attacks made by the appellant on the sufficiency of the evidence have been considered and in the opinion of the court are without merit.

In conformity to F.S. 1967, Section 924.34, F.S.A., we hereby reverse the judgment and vacate the sentence of the trial court with directions to the trial court to enter judgment of conviction for petty larceny and to impose sentence accordingly, taking into account the incarceration to which the appellant has been subjected under the improper judgment and sentence.

Reversed and remanded.

CROSS, J., and BOAHER, STEPHEN R., Associate Judge, concur.