CopyCited 7 times | Published | Florida 3rd District Court of Appeal
Yellow flag · Declined to Follow by Rodriguez (1989) · 1 cautionary
...Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant. Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee. Before BARKDULL, NESBITT and FERGUSON, JJ. PER CURIAM. The defendant was charged and convicted of ten counts of violating Section 877.08, Florida Statutes (1981)....
...[1] The sentencing phase brought to the court's attention that the same defendant had been previously convicted of the same offense; to wit: tampering with parking meters. Accordingly, the trial court adjudicated and sentenced him for the enhanced offense as a felon as provided for by Section 877.08(3), Florida Statutes (1981)....
...Subject matter jurisdiction is determined from the face of the accusatory pleading. Pope v. State,
268 So.2d 173 (Fla.2d DCA 1972), cert. discharged,
283 So.2d 99 (Fla. 1973); see also Ex Parte Reed,
101 Fla. 800,
135 So. 302 (1931). The information charging the defendant with the violation of Section
877.08 failed to allege that the defendant had a prior conviction for the same offense....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 5579, 2010 WL 1688473
...Ingraham challenges the judgments and sentences imposed on him after a jury found him guilty of unlawful possession of a concealed handcuff key, a violation of section
843.021(2), Florida Statutes (2004), and felony vending machine theft, a violation of section
877.08(3), (4), Florida Statutes (2004)....
...The jury returned verdicts finding Mr. Ingraham guilty as charged on both counts of the information. After the jury returned its verdicts, the State presented proof that Mr. Ingraham had a prior conviction for vending machine theft. II. THE DEFECT IN THE INFORMATION Section 877.08 defines offenses relating to coin-operated vending machines and parking meters. Section 877.08 provides, in pertinent part, as follows: (2) Whoever maliciously or mischievously molests, opens, breaks, injures, damages, or inserts any part of her or his body or any instrument into any coin-operated vending machine or parking mete...
...ither at the same term or a subsequent term of court, shall be guilty of a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. (Emphasis added.) Thus the offense of vending machine tampering or damaging under section
877.08(2) does not require proof of intent to commit larceny. This offense is categorized as a second-degree misdemeanor. On the other hand, the offense of vending machine theft under section
877.08(3) does require proof of intent to commit larceny. Vending machine theft is also defined as a second-degree misdemeanor. However, in accordance with section
877.08(4), a second offense of vending machine theft constitutes a felony of the third degree....
...Ingraham did maliciously or mischievously molest, open, break, injure or damage a coin-operated vending machine, the property of that certain business entity known as *766 Ace Auto Repair, the said KENNETH L. INGRAHAM having been previously convicted of molestation of a coin machine on April 28, 1994; contrary to Chapter 877.08(4), Florida Statutes, and against the peace and dignity of the State of Florida. The caption of the information designated the crime charged in count two as "MOLESTATION OF A COIN MACHINE, 3° F." Thus the State apparently intended to charge Mr. Ingraham with the crime of felony vending machine theft under section 877.08(3) and (4) but omitted to allege the required element of intent to commit larceny....
...5th DCA 1984) (quoting Jones for the foregoing proposition). Having this distinction in mind, we turn to an examination of count two of the information in this case. As noted above, the information reflects that the State charged Mr. Ingraham with a third-degree felony in accordance with section 877.08(4), which requires two convictions under section 877.08(3) to prove the felony offense. A second or successive conviction for vending machine tampering or damaging under section 877.08(2) is never a felony, and thus Mr. Ingraham was on notice that the State sought to establish his violation of section 877.08(3) to meet the prerequisite for conviction under section 877.08(4). Moreover, count two of the information recites the appropriate statute, section 877.08(4), alleged to be violated....
...Ingraham is not entitled to relief on his first argument. III. THE OMISSION TO CHARGE THE JURY ON AN ELEMENT OF THE CRIME When the trial court instructed the jury, it mistakenly read the standard jury instruction for vending machine tampering or damaging under section 877.08(2) instead of the instruction for vending machine theft under section 877.08(3)....
CopyAgo (Fla. Att'y Gen. 1995).
Published | Florida Attorney General Reports
...364.3375 . 4 Thus, rather than categorically excluding coin-operated telephones from the term "vending machine" this statute appears to exempt such telephones from license tax requirements if an occupational license has been otherwise secured. Further, section 877.08 (1), Florida Statutes, states that: A "coin-operated vending machine" or "parking meter," for the purposes of this act, is defined to be any machine, contrivance, or device that is adapted for use in such a way that, as the result of t...
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 11779, 2014 WL 3765447
...identity),
review granted, No. SC13-2450 (Fla. Feb. 17, 2014); Ingraham v. State,
32 So. 3d 761,
767 (Fla. 2d DCA 2010) (holding that failure to instruct on the element of intent to
commit larceny in a prosecution for vending machine theft under section
877.08(3),
Florida Statutes (2004), was not fundamental error because the only disputed element
at trial was the identity of the defendant as the perpetrator).
In Mr....
