#### Johnny William MOORE, Appellant, v. STATE of Florida, Appellee.

No. 76-1406.

District Court of Appeal of Florida, Fourth District.

Nov. 9, 1977.

Rehearing Denied Dec. 20, 1977.

Richard L. Jorandby, Public Defender, Craig S. Barnard and James K. Green, Asst. Public Defenders, West Palm Beach, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.

DAUKSCH, Judge.

The Appellant was charged with grand larceny by stealing “approximately $142 of the value of more than $100.00.” He was convicted as charged. He complains the trial judge erred in refusing to charge the jury on the law concerning petit larceny. The trial judge refused because he said Appellant was charged with stealing more than $100 and the only proof was more than $100 therefore no instruction on petit larceny was necessary. No doubt the trial judge considered *Brown v. State,*206 So.2d 377 (Fla. 1968), and particularly categories three and four defined therein. The question is whether petit larceny is a category three; a *necessarily*included crime within grand larceny or a category four; a *possibly*included crime under grand larceny.

We hold that petit larceny is a necessarily included offense under grand larceny. It is impossible to steal $100 or more without having first stolen less than $100. In *Brown,*supra, the defendant was charged with robbing $68 and our Supreme Court reversed because the trial court refused to give an instruction on larceny. In *Brown,*supra, the evidence was clear that the defendant did what was charged — “At gunpoint, he forced the cashier to turn over to him the contents of the cash register.” Here it is clear the Appellant took, or aided in taking,- more than $100.

In *State*v. *Terry,*336 So.2d 65, 67 (Fla. 1976), the evidence was clear, even the defendant said so, that the defendant shot the victim. The State charged assault with the intent to commit Murder I. The trial court refused to instruct the jury on assault and battery and bare assault. Our Supreme Court reversed, saying,

> “ . . . it is legally impossible to prove an assault with intent to commit murder in the first degree without also proving a bare assault. Therefore, if the trial judge . . . found sufficient ev*530idence to instruct the jury on the major offense of assault with intent to commit murder in the first degree, he should have instructed the jury on the *necessarily*included offense of bare assault.”

See also *Moore v. State,*341 So.2d 814 (Fla.2d DCA 1977), where our Second District followed *Terry*and said the trial judge must charge assault with intent to commit robbery in a robbery case.

We have not overlooked *Gilford v. State,*313 So.2d 729 (Fla.1975), but find the dissent more persuasive, the case not followed, and *Terry,*supra, later and better.

REVERSED and REMANDED for a new and proper trial.

DOWNEY, J., concurs.

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

In my opinion, there is no way that this case can be distinguished from the case of *Gilford*v. *State,*313 So.2d 729 (Fla.1975) wherein the Florida Supreme Court held at page 732:

> The particular holding in *Brown*was that the proof of the lessor offense “necessarily” was shown by proof of the greater, e. g., armed robbery which is also obviously proof of an assault which becomes a classic “necessarily included offense” on which a charge (instruction) must be given. There the proof inheres in the evidence of the armed robbery. Such greater proof is not *always*proof of the lesser offense, however, and herein may lie the confusion. The present case is illustrative.

> *Sub judice*the *only*proof is of $600.00 worth of liquor, nondepreciable and based on “wholesale value” and not just wholesale “cost”; there is no way to reduce this to the less than $100 market value *necessary*to include the lesser offense of petty larceny. “Market value” is of course the standard. *Spencer v. State,*217 So.2d 331 (Fla.App. 4th 1968). But wholesale “value”, as the record here sets forth, absent contrary proof, sufficiently satisfies the recognized test.

> Had the evidence admitted of any finding on which the jury might have based a breaking and entering with intent to commit a misdemeanor, to-wit: petty larceny, a proper lesser charge *sub judice,*then a jury instruction thereon should have been given. The wise trial judge correctly perceived, however, that such an instruction found no support in the evidence and was therefore inappropriate and would have been error.

> No evidence; no jury charge.

In this case the only allegation and the only proof is that $142 of United States currency was involved. There is no evidence that less than $142 was taken or that the appellant was guilty of taking less than $142. And $142 is worth $142, no more or less.

In *Brown v. State,*206 So.2d 377 (Fla. 1968) it was held that larceny is a necessarily included lesser offense of robbery. That is true because robbery *by definition*is a forcible larceny from the person. *Montsdoca v. State,*84 Fla. 82, 93 So. 157, 27 A.L.R. 1291 (Fla.1922). In short, it is true that you have to commit a larceny in order to commit a robbery, but you do not have to commit a petit larceny in order to commit a grand larceny. I think the trial judge was correct in declining to instruct the jury on petit larceny.