JERRY TOBE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Jerry Tobe was convicted of second-degree grand theft after a jury trial, but the Florida appellate court reversed and remanded for a new trial because the trial court improperly instructed the jury on the definition of 'value' by incorporating the retail theft statute's definition instead of the grand theft statute's standard, effectively directing a verdict for the state.
The court held that it was reversible error to instruct the jury on the retail theft statute's definition of value when the defendant was charged with grand theft, as the two statutes define 'value' differently and impose different penalties for different crimes. The erroneous instruction required the jury to find Tobe guilty and thus improperly directed a verdict for the state.
[1] A jury instruction that improperly defines "value" under the grand theft statute by incorporating the definition from the retail theft statute constitutes reversible erro…
[2] The definition of "value" for purposes of a grand theft conviction differs from the definition of "value" under the retail theft statute.
Previewing 2 of 4 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“"Value" needed to convict under the grand theft statute is not "value" needed to convict under the retail theft statute. Under the standard instruction for grand theft a jury may find that sale price is or is not fair market value, while under the retail theft statute the jury must find that sale price is equal to "value of merchandise."”
Establishes the critical distinction between how 'value' is defined under the two different statutes and explains why applying the retail theft definition to a grand theft charge was error.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTobe conceded he stole two men's suits from J.C. Penney but disputed whether their fair market value met the $100 minimum required for grand theft con…
The full statement of facts, procedural history, and disposition for this case are member content.
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JORGENSON, Judge.
Tobe was charged in a single count information with, and convicted by a jury of, second degree grand theft.1 He alleges that the trial court erred by improperly instructing the jury on the value of the stolen merchandise. We agree and therefore reverse and remand for a new trial.
At trial Tobe conceded that he was guilty of the theft of two men’s suits from J.C. Penney but claimed that their fair market value was less than the $100 minimum value necessary to be convicted under section 812.014(2)(b)(l), Florida Statutes (1981).
The trial court instructed the jury on value by reading the standard grand theft jury instruction, founded upon section 812.012(9), Florida Statutes (1981). The court erred by adding to this instruction the definition of value contained in the retail theft statute, section 812.015(l)(c), Florida Statutes (1981). Under the retail theft statute, value means the “sale price of the merchandise at the time it was stolen.” A conviction under the retail theft statute is a misdemeanor of the second degree, while a grand theft conviction is a felony of the third degree. They are separate and distinct crimes imposing separate and distinct sentences. “Value” needed to convict under the grand theft statute is not “value” needed to convict under the retail theft statute. Under the standard instruction for grand theft a jury may find that sale price is or is not fair market value, while under the retail theft statute the jury must find that sale price is equal to “value of merchandise.”
The addition of the retail theft statute instruction regarding the definition of value, the central issue of this case, required the jury to find Tobe guilty of grand theft. The additional instruction had the effect of improperly directing a verdict for the state. Because Tobe was not charged with retail or petit theft it was reversible error to instruct the jury on the definition of value contained in the retail theft statute. The court’s jury charge should clearly instruct the jurors on the law they are to apply in deciding factual issues in the case before them. See United States v. Wolfson, 573 F. 2d 216 (5th Cir.1978); cf. Griffin v. State, 370 So. 2d 860 (Fla. 1st DCA 1979) (jury instructions must be confined to issues concerning evidence received at trial); Palmer v. State, 323 So. 2d 612 (Fla. 1st DCA 1975), cert. denied mem., 336 So. 2d 108 (Fla.1976) (same).
Reversed and remanded for a new trial.
. See § 812.014(2)(b)(l), Fla.Stat. (1981).
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Cited By
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Dude Emshwiller v. State, 462 So. 2d 457 (Fla. 1985)…SHAW, Justice. This case is before us on petition to review Emshwiller v. State, 443 So. 2d 343 (Fla. 2d DCA 1983). We granted review based on conflict with Tobe v. State, 435 So. 2d 401 (Fla. 3d DCA 1983). Art. V, § 3(b)(3), Fla. Const. As stated by the district court below, this case presents a rather confused record in regard to the exact crime with which appellant was charged and convicted.... The caption of the information ch…
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Dude Emshwiller v. State, 443 So. 2d 343 (Fla. 2d DCA 1983)…12.015, Florida Statutes (1981), where value is alleged and proved, is a separate criminal offense from “theft” as contemplated by section 812.014, Florida Statutes (1981). We hold that it is not and, in doing so, are in conflict with Tobe v. State, 435 So. 2d 401 (Fla. 3d DCA 1983). The caption of the information charging appellant below is titled an “Information for Retail Theft.” The body of the information charges that appellant did “unlawfully take possession of, or carry away, merchandise of a value of…
Authorities Cited
- United States v. Wolfson, 573 F.2d 216 (5th Cir. 1978)
- Griffin v. State, 370 So. 2d 860 (Fla. 1st DCA 1979)
- Palmer v. State, 323 So. 2d 612 (Fla. 1st DCA 1975)