The Facts of the Case:
A building containing offices and retail establishments was broken into and burglarized. Moments after the silent alarm system went off, the appellants, along with a third person, were found inside including various tools that were apparently used in the burglary. Consequently, appellants were charged and convicted of breaking and entering with intent to commit a felony, viz: grand larceny, petit larceny and possession of burglary tools. They were each sentenced to fifteen years for the breaking and entering conviction, 60 days in the county jail for the petit larceny, and five years for the possession of burglary tools, the latter to run consecutive to the former concurrent sentences.
The appellants now ask the court for a reversal of their convictions and sentences and argues that the evidence presented was insufficient to support the conviction of breaking and entering with intent to commit grand larceny; that the trial court erred in disallowing the testimony of an alleged material witness; and that the trial court erred in imposing three separate sentences for the three offenses inasmuch as the petit larceny and possession of burglary tools were but facets or phases of the breaking and entering with intent to commit grand larceny.
The Ruling of the Court:
First, the court finds that the evidence was totally sufficient to support the verdict. There was adequate testimony to illustrate that the value of the contents inside the building and the safes therein which were broken into was well over $100.00 and that the contents of said safes were missing. Although appellants offered an explanation concerning their presence in the building when apprehended, the issue of guilt was one which could be decided only by the trial jury.
The question of whether the proof was inconsistent with a reasonable or credible hypothesis of innocence was a matter solely for the jury to decide. The only authority of the appellate court once this issue has been resolved is to review the record to determine whether it contains sufficient competent evidence which, if believed, would support the verdict. Since the court has found that the evidence was indeed sufficient, it cannot therefore disturb the judgments of conviction.
Second, the court finds that the trial court’s ruling with respect to the disallowance of the testimony of a material witness did not constitute prejudicial error.
Third, however, the court finds that a reversal is warranted on the issue of sentencing. Certainly, some of the tools recovered at the scene were used in the breaking and entering of the building and without such tools, more than likely there could not have been any breaking or entering. The court is faced with two facets of the same criminal transaction but only one sentence should have been imposed for the highest offense contained within the transaction. The court also finds that the same rationale applies to the separate sentence imposed for the petit larceny conviction. While it is true that the Third District Court of Appeals in one case has held that separate sentences may be imposed for the offenses of breaking and entering with intent to commit grand larceny and grand larceny, nonetheless, the court finds that the better rule of law is that contained in decisions from the Second District Court of Appeals which held that the single transaction rule is applicable to such factual situations like the case at bar. It must be presumed that a perpetrator breaks and enters with a purpose and that the accomplishment of that purpose, be it grand or petit larceny, can only be classified as part of the same criminal act, for which sentence may be imposed only on the highest offense charged. Here, the two crimes charged against appellants were facets of the same criminal act.
In sum, the judgment is affirmed in part and reversed in part; the judgments of conviction and sentences imposed for breaking and entering with intent to commit a felony are affirmed, but the remaining sentences are set aside and vacated.
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