Opinion
No. 18325.
June 1, 1983.
Appeal from First District Court, Box Elder County; Omer J. Call, Judge.
Stephen R. McCaughey, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.
This is an appeal from a nonjury conviction for misdemeanor theft in a case where a felony burglary charge only was filed. The trial judge, upon trial of the matter, found there was no burglary, but that the petit theft shown was an included offense, and sentenced the appellant to six months in jail.
The appellant filed a motion in arrest of judgment, which was denied. It was based on the contention that the offense of theft is not one included in burglary, being one unnecessary for commission of the latter.
The State's attorney agreed with appellant's claim and officially made such commitment a matter of record in this case by confessing error in its brief and by joining the appellant in seeking reversal of the trial court's judgment of conviction.
This Court is in agreement with the request for reversal. The case is remanded with instructions to vacate the judgment and sentence of the trial court.
See State v. Elliott (Clayton), Utah, 641 P.2d 122 (1982).
STEWART, J., dissents.