FRANKIE LEE DRAKES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frankie Lee Drakes was convicted of burglary and grand theft for stealing property including firearms from two houses. The court held that while the double jeopardy claim was waived for lack of timely presentation, the state failed to establish sufficient evidence of the property value separate from the firearm value for one grand theft conviction, requiring reduction to petit theft.
The court held that theft of a firearm and other property at the same time and place as one continuous act constitutes a single theft offense, but appellant waived the double jeopardy defense by failing to raise it timely by motion to dismiss. Additionally, because the state prosecuted the firearm theft separately, the firearm value must be excluded from the remaining property value, and since the state failed to establish the firearm value or the value of remaining property separately, the evidence was insufficient to support grand theft conviction on one count.
[1] The theft of a firearm and other property during a single act or transaction constitutes only one theft offense.
[2] A defendant waives a double jeopardy defense if it is not timely presented by a motion to dismiss.
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Join FLexlaw to unlock all legal intelligence“the theft of a firearm and other property at the same time and place as one continuous act or transaction is a single theft offense”
Establishes the legal principle that firearms stolen together with other property constitute a single offense, not separate charges
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Join FLexlaw to unlock all legal intelligenceAppellant burglarized the Haynes house and Turner house, stealing property including guns from each. For each burglary, he was charged with two grand …
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COWART, Judge.
Appellant burglarized both the Haynes house and the Turner house, in each case stealing property which included a gun or guns. As to each of the two burglaries, appellant was charged with two grand thefts under section 812.014(2)(b), Florida Statutes (1979): one theft under section 812.014(2)(b)l (in which count the property stolen was alleged to be valued at $100 or more), and the second theft under section 812.014(2)(b)3 (in which count the property stolen was alleged to be a firearm).
We agree that the theft of a firearm and other property at the same time and place as one continuous act or transaction is a single theft offense. Hearn v. State, 55 So. 2d 559, 28 A.L.R.2d 1179 (Fla.1951); Hill v. State, 293 So. 2d 79 (Fla.3d DCA 1974); Avilia v. State, 278 So. 2d 298 (Fla.4th DCA 1973); Russell v. State, 107 So. 2d 801 (Fla.2d DCA 1958).
However, appellant failed to timely present his double jeopardy defense by motion to dismiss the information, as required by Florida Rule of Criminal Procedure 3.190(b), and it was waived. Chapman v. State, 389 So. 2d 1065 (Fla.5th DCA 1980).
The value of the property taken must be established as an essential element of the crime of grand larceny. Negron v. State, 306 So. 2d 104 (Fla.1974); Tribble v. State, 277 So. 2d 559 (Fla.3d DCA 1973); Smart v. State, 274 So. 2d 577 (Fla.2d DCA 1973).
The state attorney, attempting to prove value, elicited only testimony that all of the property stolen from the Turner house, including the gun, was worth between $1,500 and $1,700 and did not establish the value of the property separate from the gun. Neither did the state establish the value of the gun, which would have permitted its value to have been subtracted from the total value to establish the value of the property taken excluding the gun. Since the state chose to prosecute the appellant under a separate count for theft of the firearm, the value of the firearm must be excluded from the value of the remaining property.
Therefore, the evidence of the value of the property stolen from the Turner house is insufficient to support the conviction of grand larceny. Suarez v. State, 136 So. 2d 367 (Fla.2d DCA 1962).
Accordingly, appellant’s conviction of grand larceny under count III of amended information 78-198, being count VIII of the original information is hereby reduced to petit theft, a misdemeanor of the second degree (§ 812.-014(2)(c), Fla.Stat. (1979)) and the sentence on that count is vacated and the cause remanded for resentencing.
We find the evidence sufficient to support the jury’s finding that appellant participated in the armed robbery of Mrs. Campbell;
REVERSED in part; AFFIRMED in part.
DAUKSCH, C.J., and ORFINGER, J., concur.
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Cited By (11 total)
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Baker v. State, 425 So. 2d 36 (Fla. 5th DCA 1982)…y into units, pigeonholed horizontally in rows as to time and vertically into tiers as to place. . Llanos v. State, 401 So. 2d 848 (Fla. 5th DCA 1981). . See, e.g., Bass v. State, 380 So. 2d 1181 (Fla. 5th DCA 1980). . See, e.g., Drakes v. State, 400 So. 2d 487 (Fla. 5th DCA 1981) (theft of multiple items during one burglary held to be one theft); Castleberry v. State, 402 So. 2d 1231 (Fla. 5th DCA 1981) (where the taking of a car and other property was considered factually to constitute one robbery, a sep…
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Johnson v. State, 460 So. 2d 954 (Fla. 5th DCA 1984)…ly held that the violation of a defendant’s constitutional double jeopardy rights does not constitute a fundamental error but is subject to the contemporaneous objection rule. See Garcia v. State, 444 So. 2d 969 (Fla. 5th DCA 1983); Drakes v. State, 400 So. 2d 487 (Fla. 5th DCA 1981), review denied, 411 So. 2d 381 (Fla.1981); Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980). These cases were based on the authority of cases decided in two other district courts of appeal.5 However this court has also held…1 / 2
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Rodriquez v. State, 443 So. 2d 236 (Fla. 5th DCA 1983)…ty is still a part of the statute defining grand theft, §§ 812.014(2)(a) and (b), Fla.Stat. Accordingly, it has been uniformly held that an essential element of grand larceny is the value or nature of the property stolen. See, e.g., Drakes v. State, 400 So. 2d 487 (Fla. 5th DCA 1981) (“The value of the property taken must be established as an essential element of the crime of grand larceny.”) See also Butler v. State, 354 So. 2d 437 (Fla. 3d DCA 1978); Johnson v. State, 353 So. 2d 889 (Fla. 3d DCA 1978); Spen…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ozzie Joseph Negron and Teresa Negron v. State, 306 So. 2d 104 (Fla. 1974)
- Hearn v. State, 55 So.2d 559 (Fla. 1951)
- Jordan v. State, 136 So. 2d 367 (Fla. 1st DCA 1962)
- Cephus Hill and John Leggett v. State, 293 So. 2d 79 (Fla. 3d DCA 1974)
- Riddle v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980)
- Chapman v. State, 389 So. 2d 1065 (Fla. 5th DCA 1980)
- Rain v. Smith, 274 So. 2d 577 (Fla. 1st DCA 1973)
- Avilia v. State, 278 So. 2d 298 (Fla. 4th DCA 1973)
- Russell v. State, 107 So. 2d 801 (Fla. 2d DCA 1958)
- Crittenden v. State, 277 So. 2d 559 (Fla. 1st DCA 1973)