Williams v. State , 250 So. 2d 11 ( 1971 )

250 So.2d 11 (1971)

Ralph WILLIAMS, Appellant,
v.
The STATE of Florida, Appellee.

No. 71-47.

District Court of Appeal of Florida, Third District.

June 29, 1971.

Phillip A. Hubbart, Public Defender, and Alan S. Becker, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Bruce L. Scheiner, Asst. Atty. Gen., for appellee.

Before PEARSON, C.J., and CHARLES CARROLL and SWANN, JJ.

PEARSON, Chief Judge.

The appellant was found guilty in a non-jury trial of (1) larceny of an automobile, and (2) resisting an officer with violence. He was found guilty upon each count and sentenced to eighteen months in the state penitentiary. The sentence does not set out the time to be served as to each count but gives a total for both counts.^[1] No error as to the form of the sentence is argued.

It is urged on this appeal that the evidence is insufficient upon each count. Our review of the record convinces us that the evidence is insufficient to support the judgment upon count one, larceny of an automobile, but is sufficient upon count two, resisting an officer with violence. As to count one, the record is susceptible to the reasonable hypothesis that the appellant, a social visitor in the owner's household used the automobile without the owner's permission and was apprehended a few hours later in front of appellant's residence in the same locality. Appellant's flight and resistance to arrest are evidence of guilt, see Daniels v. State, Fla. 1959, 108 So.2d 755; Harrison v. State, Fla.App. 1958, 104 So.2d 391. They do not establish guilt of the higher crime as contrasted with the lesser offense. cf. Noeling v. State, Fla. 1949, 40 So.2d 120.

Appellant's argument that because he was intoxicated he ought not be held to account for his violence in resisting arrest is without basis in the law. See Colson v. State, Fla. 1954, 73 So.2d 862.

The judgment upon count one is reversed with directions to enter a judgment of guilty of the lesser included offense of unauthorized temporary use of motor vehicle in violation of F.S. § 814.04, F.S.A. The judgment upon count two is affirmed. The sentence is set aside and the cause is remanded for a sentence upon each count separately.

Affirmed in part, reversed in part and remanded.

NOTES

[1] F.S.A. § 814.03(1) specifies not more than five years imprisonment for auto theft. F.S.A. § 843.01 specifies not more than two years imprisonment for resisting officer with violence.