JOHNATHAN STEPHENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Stephens was convicted of temporary unauthorized use of a motor vehicle (joyriding), a statute that was impliedly repealed by the omnibus theft statute. The court reversed his conviction and remanded for retrial, holding that while he cannot be convicted of a nonexistent crime, he is not entitled to discharge because the offense shares identical elements with the grand theft charge for which he was originally prosecuted.
The court reversed Stephens's conviction because temporary unauthorized use is a nonexistent offense, having been impliedly repealed by the omnibus theft statute. However, Stephens is not entitled to discharge because the nonexistent offense shares identical elements with the grand theft charge, meaning the conviction was merely misnomered rather than an acquittal, and he may be retried on the grand theft charge.
[1] A defendant cannot be convicted of a nonexistent crime, even if the defendant participated in inducing the erroneous conviction.
[2] A conviction for a nonexistent lesser included offense does not result in an acquittal if all elements of the nonexistent offense are identical to the elements of the mai…
Previewing 2 of 5 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“a defendant cannot be convicted of a nonexistent crime, notwithstanding his participation in inducing the erroneous conviction”
Establishes the fundamental principle that conviction of a nonexistent offense violates a defendant's rights regardless of the defendant's role in the error
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Join FLexlaw to unlock all legal intelligenceStephens was charged with grand theft of a motor vehicle under Florida Statutes section 812.014(2)(b). During jury trial, the defense requested a jury…
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BOARDMAN, Judge.
Appellant Johnathan Stephens urges us to reverse his judgment and sentence for the “nonexistent” offense of temporary unauthorized use of a motor vehicle1 and to remand to the trial court for his discharge. We reverse appellant’s conviction but conclude that he is not entitled to discharge.
Appellant was charged by information with grand theft of a motor vehicle under section 812.014(2)(b), Florida Statutes (1981). During appellant’s ensuing jury trial, defense counsel requested an instruction on temporary unauthorized use, or “joyriding,” under section 812.041, as a lesser included offense of the crime charged. The trial court gave the requested instruction, and the jury found appellant guilty of the alleged “lesser included offense.”
As appellant asserts, and correctly, our supreme court recognized in State v. Dunmann, 427 So. 2d 166 (Fla.1983), that the enactment of the omnibus theft statute2 repealed the temporary unauthorized use statute by implication. Dunmann, 427 So. 2d at 168. Under our supreme court’s holding in Achin v. State, 436 So. 2d 30 (Fla.1982), a defendant cannot be convicted of a nonexistent crime, notwithstanding his participation in inducing the erroneous conviction. See also State v. Sykes, 434 So. 2d 325 (Fla.1983).
Under the holding of Achin, a defendant convicted of a technically nonexistent crime may be retried when all of the elements of the “crime” for which he was convicted are equal to the elements of the main offense. Achin, 436 So. 2d at 32. Accord, Jordan v. State, 438 So. 2d 825 (Fla.1983); Sykes. In essence, conviction, as here, of a nonexistent “lesser included” offense which shares identical elements with the main offense does not result in an acquittal — the conviction has merely been misnomered.
Dunmann’s holding that the “joyriding” statute has been subsumed within the omnibus theft statute necessarily means that the offenses of theft and temporary unauthorized use of a motor vehicle possess identical elements. Conversely, any lack of identity would leave the “joyriding” statute with a valid, independent field of operation, which the Dunmann court found lacking.
On the basis of the foregoing authorities, we REVERSE appellant’s judgment and sentence and REMAND for a new trial.
OTT, C.J., and LEHAN, J., concur. . While we refer to temporary unauthorized use of a motor vehicle as a "nonexistent” offense, we recognize that facts which formerly would have supported a conviction under section 812.-041 would now support an adjudication under the omnibus theft statute.
. Chapter 77-342, effective date October 1, 1977.
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Authorities Cited
- State v. Dunmann, 427 So. 2d 166 (Fla. 1983)
- State v. Sykes, 434 So. 2d 325 (Fla. 1983)
- Achin v. State, 436 So. 2d 30 (Fla. 1982)
- Louie L. Wainwright v. Potts, 438 So. 2d 825 (Fla. 1983)