Callahan v. State, 504 So. 2d 434 (Fla. 2d DCA 1987). · Go Syfert
Callahan v. State, 504 So. 2d 434 (Fla. 2d DCA 1987). Cases Citing This Book View Copy Cite
2 citation events across 1 distinct court.
Strongest positive: Bell v. State (fladistctapp, 1995-02-03)
Top citers, strongest first. 1 distinct citer. How cited ↗
cited Cited as authority (rule) Bell v. State
Fla. Dist. Ct. App. · 1995 · confidence medium
Berry v. State, 566 So.2d 22, 24 (Fla. 1st DCA 1990), review denied, 576 So.2d 284 (Fla. 1991); Callahan v. State, 504 So.2d 434, 435 (Fla. 2d DCA 1987).
Retrieving the full opinion text from the archive…
Kevin CALLAHAN
v.
STATE of Florida, Appellee/Cross-Appellant
No. 85-2833.
District Court of Appeal of Florida, Second District.
Feb 25, 1987.
504 So. 2d 434
Ronnie G. Crider of Carlson, Meissner, Webb & Crider, P.A., Clearwater, for appellant., Robert A. Butterworth, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee/cross-appellant.
Frank, Scheb, Schoonover.
Cited by 2 opinions  |  Published
SCHEB, Acting Chief Judge.

Appellant, Kevin Callahan, challenges the trial court’s denial of his motion for mistrial. The state cross-appeals the trial court’s failure to sentence appellant for the crime of burning to defraud an insurer. We reject appellant’s contention but we find merit to the state’s cross-appeal.

Appellant was convicted of arson, a second degree felony, and burning to defraud an insurer, a third degree felony. The trial judge found that burning to defraud an. insurer is a lesser included offense of arson, so he imposed a sentence for only arson.

The test for determining whether a less serious offense is included in a more serious offense is whether “all of the elements required to be proven to establish the former are also required to be proven, along with more, to establish the latter.” Borges v. State, 415 So.2d 1265, 1267 (Fla.1982). In Florida, an analysis of the statutory elements is made to determine whether a crime is a lesser included offense. State v. Rodriquez, 500 So.2d 120 (Fla.1986).

Burning to defraud an insurer, which the trial judge considered a lesser offense, is[*435] proscribed by section 817.233, Florida Statutes (1985). It requires proof of insurance and intent to injure or defraud the insurer, elements not found in the arson statute, section 806.01, Florida Statutes (1985). Therefore, burning to defraud an insurer is not a lesser included offense of arson. The trial judge should have imposed sentences for both crimes. See § 775.021(4), Fla.Stat. (1985).

We affirm the appellant’s conviction but vacate his sentences and remand for further proceedings consistent with this opinion.

SCHOONOVER and FRANK, JJ., concur.