ENUMERABLE VAILLANT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the prosecutor's comment on the defendant's post-arrest silence was harmless error, but the grand theft conviction must be vacated due to lack of evidence of value, and the sentencing calculation was erroneous.
The defendant was convicted of robbery, false imprisonment, trespass, and grand theft. He appealed, arguing prosecutorial misconduct, insufficient evi…
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PER CURIAM.
Vaillant appeals his convictions and sentences on two counts of robbery with a firearm, two counts of false imprisonment with a firearm, one count of trespass with a firearm and one count of grand theft. We affirm in part and reverse in part.
Vaillant contends that he is entitled to a new trial because the prosecutor, in closing argument, impermissibly commented on the post-arrest exercise of his right to remain silent. We disagree because we find the error, if any, was harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla.1985); Walker v. State, 484 So. 2d 1322 (Fla. 3d DCA 1986).
Vaillant next contends that the trial court erred in failing to grant his motion for judgment of acquittal or reduction of the charges on the grand theft count. We agree. Vaillant was charged with the theft of property valued at more than $100. Proof of value is essential to a conviction for grand theft. Negron v. State, 306 So. 2d 104 (Fla.1974); Evans v. State, 452 So. 2d 1040 (Fla. 2d DCA 1984). The state presented no evidence of the value of the property whatsoever. Accordingly, the conviction for grand theft is vacated with directions that the appellant be adjudicated guilty of petit theft.
Finally, Vaillant maintains that the trial court erred in calculating his guidelines sentence. We agree. The trial court erred in scoring points for victim injury when none of the offenses at conviction included physical contact as an element. Fla.R.Crim.P. 3.701 d.7.; State v. Whitfield, 487 So. 2d 1045 (Fla.1986). The sentence is therefore reversed and the cause is remanded for resentencing.
Affirmed in part, reversed in part and remanded.
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In the Interest of F.R., 539 So. 2d 588 (Fla. 1st DCA 1989)…6 So. 2d 104 (Fla.1974), receded from on other grounds, Butterworth v. Fluellen, 389 So. 2d 968 (Fla.1980), and Cofield v. State, 474 So. 2d 849 (Fla. 1st DCA 1985). See also, Nelson v. State, 501 So. 2d 9 (Fla. 5th DCA 1986), and Vaillant v. State, 490 So. 2d 1326 (Fla. 3d DCA 1986). The only evidence concerning the value of the stolen property [other than the cover, which was homemade at a cost of about $40.00] was given by the owner of the property, who estimated its value at “about 310 [dollars], somethin…
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Beasley v. State, 503 So. 2d 1347 (Fla. 5th DCA 1987)…m injury could not be scored for attempted aggravated battery. Inscore v. State, 480 So. 2d 218 (Fla. 4th DCA 1985). Other decisions have held that victim injury cannot be scored where it is not an element of the offenses charged. Vaillant v. State, 490 So. 2d 1326. (Fla. 3d DCA 1986); Lee v. State, 486 So. 2d 709 (Fla. 5th DCA 1986); Smith v. State, 484 So. 2d 649 (Fla. 4th DCA 1986); Whitfield v. State, 471 So. 2d 633 (Fla. 1st DCA 1985), affirmed, 487 So. 2d 1045 (Fla.1986). Since appellant was charged with…
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Smith v. State, 573 So. 2d 194 (Fla. 3d DCA 1991)…n this case had a market value of $300.00 or more at the time of the theft, and, accordingly, (b) the trial court erred in denying the defendant’s motion at trial to reduce the subject grand-theft charge to petit theft. See, e.g., Vaillant v. State, 490 So. 2d 1326, 1327 (Fla. 3d DCA 1986); Cofield v. State, 474 So. 2d 849 (Fla. 1st DCA 1985). Second, we reverse the twenty-year sentence imposed on the burglary conviction under the Habitual Offender Act because the trial court failed to make the required stat…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Ozzie Joseph Negron and Teresa Negron v. State, 306 So. 2d 104 (Fla. 1974)
- Grover Evans v. State, 452 So. 2d 1040 (Fla. 2d DCA 1984)
- Walker v. State, 484 So. 2d 1322 (Fla. 3d DCA 1986)