ELMER LEE BARRON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Elmer Lee Barron appealed his convictions for robbery with a firearm and grand theft, as well as attorney's fees imposed under Florida law. The appellate court vacated the grand theft conviction because both charges arose from a single taking of property, and remanded for a hearing on costs because Barron was not afforded the opportunity to be heard regarding the fees before judgment was entered.
The court vacated the grand theft conviction because convictions for both grand theft and robbery resulting from a single taking of property cannot stand. The court also vacated the final judgment assessing fees and costs and remanded for a hearing because Barron was not afforded the opportunity to be heard and offer objections to the determination of costs before judgment was entered, despite the affidavit's promise of such opportunity.
[1] A defendant cannot be convicted of both grand theft and robbery arising from a single taking of property.
[2] A defendant must be afforded an opportunity to object to the imposition of attorney's fees and costs before a final judgment is entered.
Previewing 2 of 3 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“Convictions for both grand theft and robbery resulting from a single taking of property cannot stand.”
Establishes the core legal principle that dual convictions arising from a single taking are improper and violates double jeopardy principles.
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Join FLexlaw to unlock all legal intelligenceBarron stole Michael Reel's pickup truck from a convenience store parking lot while Reel was shopping. When Reel noticed the truck being driven away, …
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FRANK, Judge.
Elmer Lee Barron has appealed from his convictions for robbery with a firearm and grand theft, and from the imposition of attorney’s fees and costs pursuant to section 27.56, Florida Statutes (1985). We vacate the grand theft conviction and remand for a hearing on costs.
Barron stole Michael Reel’s pickup truck from the parking lot of a convenience store, while Reel was inside making purchases. When Reel noticed his truck pull ing out of the parking lot he ran after it. He managed to jump into the bed of the truck and knock on the rear window, at which point Barron displayed a loaded revolver. Reel jumped out of the truck. After doing so he observed the truck stop and heard a gunshot. Barron drove away, only to be apprehended some time later. Barron was convicted of both robbery with a firearm and grand theft, although the court sentenced him only on the robbery charge. Despite the leniency shown in sentencing Barron, the court erred in adjudicating him guilty of both offenses. Notwithstanding the state’s novel assertions to the contrary, i.e., that Reel had regained possession of the truck, the facts exhibit only a robbery which occurred during a single taking and Barron’s brandishing and firing of the revolver merely facilitated the theft. Reel never regained possession of the truck. Convictions for both grand theft and robbery resulting from a single taking of property cannot stand. State v. Bing, 514 So. 2d 1101 (Fla.1987); see also Carawan v. State, 515 So. 2d 161 (Fla.1987).
Barron signed an affidavit of insolvency in which he consented to the imposition of a public defender’s lien. The document he signed, however, assured him “the opportunity to be heard, and offer objections to the determination of value of the services of the public defender and costs.” The record nowhere reflects that Barron was afforded such an opportunity prior to the entry of the final judgment assessing fees and costs. This was error. Canale v. State, 509 So. 2d 1245 (Fla. 2d DCA 1987).
Therefore, we vacate Barron’s judgment of conviction for grand theft, together with the final judgment assessing fees and costs, and remand for a hearing in accordance with Jenkins v. State, 444 So. 2d 947 (Fla.1984).
CAMPBELL, A.C.J., and PARKER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Landers v. State, 562 So. 2d 443 (Fla. 2d DCA 1990)…PER CURIAM. Appellant raises three issues on appeal, of which we find merit in only one. We order the attorney’s fees and costs provision stricken since they were imposed without prior notice and an opportunity to be heard. Barron v. State, 524 So. 2d 1138 (Fla. 2d DCA 1988); Mays v. State, 519 So. 2d 618 (Fla.1988); Jenkins v. State, 444 So. 2d 947 (Fla.1984). CAMPBELL, C.J., and SCHOONOVER and THREADGILL, JJ., concur.…
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Futch v. State, 531 So. 2d 422 (Fla. 2d DCA 1988)…PER CURIAM. We agree with appellant that the trial court erred in imposing court costs and a fee for the services of the public defender without notice or the opportunity to be heard. Jenkins v. State, 444 So. 2d 947 (Fla.1984); Barron v. State, 524 So. 2d 1138 (Fla. 2d DCA 1988). Accordingly, we strike the cost provision without prejudice to the state to seek reassessment after proper notice to appellant. The judgment and sentence are affirmed in all other respects. RYDER, A.C.J., and DANAHY and FRANK,…
Authorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- THE Florida BAR v. Long, 514 So. 2d 1101 (Fla. 1987)
- Canale v. State, 509 So. 2d 1245 (Fla. 2d DCA 1987)