ALFRED KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alfred Kelly was convicted of burglary, grand theft, and dealing in stolen property based on evidence that he pawned items stolen from a victim's home and had given a voluntary confession. The appellate court affirmed the burglary and dealing in stolen property convictions but reversed the grand theft conviction, holding that these latter two offenses arise from the same criminal episode and cannot support separate convictions.
The convictions for grand theft in the second degree and dealing in stolen property cannot both stand because these offenses arise from the same scheme or course of conduct, not different transactions. The one-week interval between theft and pawning does not create a separate criminal episode. The burglary conviction is affirmed, and the dealing in stolen property conviction is affirmed, but the grand theft conviction is reversed.
[1] A defendant's oral and written confession, if voluntary and properly identified, is admissible into evidence.
[2] A victim's testimony identifying stolen items as belonging to them is not rendered insufficient for admissibility by the existence of other similar items in the community…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The fact that one week elapsed between the theft and the pawning of the stolen items does not support the state's argument that a different scheme or course of conduct arose by reason of the interim.”
Establishes the court's reasoning for why grand theft and dealing in stolen property cannot support separate convictions when arising from the same criminal episode.
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Join FLexlaw to unlock all legal intelligenceMrs. Skipper's home was burglarized and several stolen items were pawned the following week to Willis Brown by the defendant. The defendant was advise…
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COBB, Judge.
The appellant, Alfred Kelly, was charged in a three-count information with burglary of a dwelling, grand theft, and dealing in stolen property. He was convicted on all three counts.-
The trial evidence indicated that the home of the victim, Mrs. Skipper, was burglarized and several of the stolen items were pawned the following week to one Willis Brown by the defendant. The defendant, after being advised of his Miranda rights, gave an oral and written confession, which the trial court ruled was voluntary and which was admitted into evidence.
The appellant attempts to raise several points on appeal which were not properly preserved below: the admissibility of the confession, the state’s cross-examination of defendant in regard to prior convictions, the sufficiency of the evidence, prejudicial prosecutorial comment, the constitutionality of the grand theft statute, and the trial court’s instruction on the presumption raised by the unexplained possession of property recently stolen.
The appellant contends that the trial court erred in admitting certain tapes into evidence because of the victim’s admission on cross-examination, after identifying the tapes as the ones taken from her home, that there were many other tapes “just like this ... right here in Flagler County.” This did not render the identification insufficient for admissibility under these circumstances: the tapes were with other items, properly identified, that had been pawned by the defendant and were included in his pre-trial confession as having been taken from the victim. Moreover, if there was error in the admission into evidence of the tapes, it was harmless because there was ample evidence in respect to other identified items and their value to support the grand theft conviction.
The appellant also contends that the charge of grand theft in the second degree is an essential part of the burglary charge, and therefore he cannot be separately convicted of both. This point was addressed by the Florida Supreme Court in Estevez v. State, 313 So. 2d 692 (Fla.1975), and its conclusion therein supports the state’s argument that these two offenses are separate, not facets of the same transaction, and separate sentences for these two convictions could be properly imposed. This point on appeal is rendered moot, however, by the disposition of the last point considered hereinafter. The appellant argues that the trial court erred in accepting verdicts, and sentencing him, on both the charge of grand theft and the charge of dealing in stolen property. See § 812.025, Fla.Stat. (1979). We agree. The fact that one week elapsed between the theft and the pawning of the stolen items does not support the state’s argument that a different scheme or course of conduct arose by reason of the interim. The convictions for both grand theft of the second degree (a third-degree felony)1 and dealing in stolen property (a second-degree felony)2 cannot stand.
Accordingly, the conviction and sentence for grand theft in the second degree is reversed. See Pinder v. State, 366 So. 2d 38 (Fla. 2d DCA 1978), affirmed, State v. Pin-der, 375 So. 2d 836 (Fla.1979). The case is otherwise affirmed.
AFFIRMED in part; REVERSED in part.
ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur. . § 812.014, Fla.Stat. (1979).
. § 812.019, Fla.Stat. (1979).
COBB, Judge.
We grant rehearing to delete the reference in our prior opinion to Pinder v. State, 366 So. 2d 38 (Fla. 2d DCA 1978), aff’d., State v. Pinder, 375 So. 2d 836 (Fla.1979). Rehearing is otherwise denied, and we adhere to the balance of our prior opinion.
ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.
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T.S.R. v. State, 596 So. 2d 766 (Fla. 5th DCA 1992)…n property and the same defendant, in section 812.025, Florida Statutes. See Shearer v. State, 582 So. 2d 28 (Fla. 5th DCA 1991); W.J. v. State, 485 So. 2d 22 (Fla. 5th DCA 1986); Lennear v. State, 424 So. 2d 151 (Fla. 5th DCA 1982); Kelly v. State, 397 So. 2d 709 (Fla. 5th DCA 1981); Ridley v. State, 407 So. 2d 1000 (Fla. 5th DCA 1981); Duncan v. State, 503 So. 2d 443 (Fla. 2d DCA 1987); Repetti v. State, 456 So. 2d 1299 (Fla. 2d DCA 1984); Victory v. State, 422 So. 2d 67 (Fla. 2d DCA 1982); Hudson v. State,…
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Jones v. State, 453 So. 2d 1192 (Fla. 3d DCA 1984)…car and limiting the dealing in stolen property count to the stereo component system. Since the theft of the car and the stereo and the sale of the stereo two days later were all a portion of the same scheme or course of conduct, see Kelly v. State, 397 So. 2d 709 (Fla. 5th DCA 1981), the convictions and sentences for both grand theft and dealing in stolen property cannot stand. Accordingly, we reverse the conviction and sentence for grand theft, second degree. Finally, appellant points out that the trial co…
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Victory v. State, 422 So. 2d 67 (Fla. 2d DCA 1982)…stolen property in connection with one scheme or course of conduct. The defendant having been convicted of grand theft in Pasco County, he may not also be convicted in Manatee County for the offense of dealing in the property stolen. Kelly v. State, 397 So. 2d 709 (Fla. 5th DCA 1981). We reverse as to that conviction. However, we see no impediment to the conviction in Manatee County for grand theft based upon the fact that the- defendant obtained Garcia’s money and note by falsely representing that he had c…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Pinder, 375 So. 2d 836 (Fla. 1979)
- Ciro Estevez v. State, 313 So. 2d 692 (Fla. 1975)
- Pinder v. State, 366 So. 2d 38 (Fla. 2d DCA 1978)