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Wells v. State

District Court of Appeal of Florida, First District
Apr 29, 1982
413 So. 2d 165 (Fla. Dist. Ct. App. 1982)

Opinion

No. AH-122.

April 29, 1982.

Appeal from the Circuit Court, Duval County, Ralph W. Nimmons, Jr., J.

Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.


Wells appeals from his conviction of theft, section 812.014, Florida Statutes (1980 Supp.), entered on a plea of nolo contendere reserving the right to appeal the court's denial of Wells' pre-trial motion to dismiss on the ground there were no material disputed facts and the undisputed facts did not establish a prima facie case. Fla.R. Cr.P. 3.190(c)(4). Wells' motion set up facts tending to support his discharge on the theory that the money he received from the victim, which Wells kept, was voluntarily given him in exchange for an unfulfilled promise to perform certain services. Cf. Martin v. State, 379 So.2d 179 (Fla. 1st DCA 1980). Even if the promise was false when made, Martin held, that would not be a false representation of existing facts supporting a conviction for larceny by false representations. But as the trial court in this case held, Wells' motion did not show facts negating the theory, buttressed by the State's return showing Wells was the victim's employee, that the money given and possessed by Wells remained his employer's until, subsequently, Wells embezzled or converted it to his own use. Wells' motion to dismiss was properly denied.

AFFIRMED.

McCORD and BOOTH, JJ., concur.


Summaries of

Wells v. State

District Court of Appeal of Florida, First District
Apr 29, 1982
413 So. 2d 165 (Fla. Dist. Ct. App. 1982)
Case details for

Wells v. State

Case Details

Full title:EDDIE B. WELLS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, First District

Date published: Apr 29, 1982

Citations

413 So. 2d 165 (Fla. Dist. Ct. App. 1982)