Gill v. State , 235 So. 2d 751 ( 1970 )

HOBSON, Chief Judge.

Appellant appeals his conviction of obtaining property in return for a worthless check.¹ He was charged with obtaining four automobiles from the St. Pete Auto Auction in return for various items of personal property and a worthless check for $375. Appellant contends that because the State did not prove that he took actual physical possession of the automobiles until after he had reimbursed the auto auction for the bad check, the crime charged was not proved and if appellant was guilty of anything, he was guilty only of the misdemeanor or uttering a worthless check.² We disagree.

Appellant plead nolo contendere to the charge. The trial court ordered that a hearing be held on the plea. At the hearing, the following uncontradicted testimony was adduced from the title clerk at the auto auction:

“Q All right, when he gave you this check what did you give him in return for it?

A I gave him the bills of sale and titles to the automobiles.

Q Did he take possession of the automobiles at that time?

A Yes. I don’t know if he took them out that night, but he had the gate releases to take them out.

Q He could have taken them out if he so desired?

A Yes.

Q You gave him bills of sale and titles to these automobiles?

A Yes.

Q If he had not given you this check would you have given him the bill of sale and titles?

A No.”

Thus, appellant had received all rights to immediate possession, i. e., bills of sale, titles, and gate releases. He had the right to remove the automobiles, or take them into his actual possession, at any time. The fact that appellant did not choose to take the automobiles into actual possession is not dispositive of this case. Although we cannot lay down a hard and fast rule, we hold under the above-mentioned circumstances, appellant took constructive possession of the automobiles so as to have “obtained” them in the manner proscribed by Fla.Stat., 1967, § 832.05(3), F.S.A. For this reason the judgment appealed is

Affirmed.

MANN and McNULTY, JJ., concur.

1 . Fla.Stat., 1967, § 832.05(3), F.S.A.:

“(3) Obtaining Property in Return for Worthless Checks, etc; Penalty

“(a) It shall be unlawful for any person, firm or corporation to obtain any services, goods, wares or other things of value by means of a check, draft or other written order upon any bank, person, firm or corporation, knowing at the time of the making, drawing, uttering, issuing or delivering of said check or draft that the maker thereof has not sufficient funis on deposit in or credit with such bank or depository with which to pay the same upon presentation, provided however that no crime may be charged in respect to the giving of any such check or draft or other written order where the payee knows or has been expressly notified or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to insure payment thereof.”

2 . Fla.Stat., 1967, § 832.05(2), F.S.A.