STEVEN CRAIG KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant cannot be convicted of both robbery and grand theft for a single underlying act, and a new statute cannot be applied retroactively to the defendant's disadvantage.
Appellant was convicted of robbery with a firearm and second degree grand theft based on a single incident. The trial court adjudicated him guilty and…
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PER CURIAM.
The appellant, Steven Craig Kelly, challenges the judgments and sentences imposed upon him for robbery with a firearm and second degree grand theft. We reverse the judgment and sentence imposed for grand theft.
The appellant was charged with second degree grand theft in violation of section 812.014(2)(b), Florida Statutes (1985), and robbery with a firearm in violation of section 812.13(2)(a), Florida Statutes (1985). The charges were based upon an incident involving the robbery of a gas station on June 2, 1987. A jury subsequently found the appellant guilty on both counts. The trial court adjudicated the appellant guilty of both offenses and sentenced him accordingly. This timely appeal followed.
We agree with the appellant’s contention that he cannot be convicted of both robbery and grand theft for a single underlying act. See Carawan v. State, 515 So. 2d 161 (Fla.1987). Although Carawan has apparently been superseded by the enactment of section 775.021(4)(b), Florida Statutes (1988 Supp.), State v. Barritt, 531 So. 2d 338 (Fla.1988), this statute cannot be applied retroactively to the appellant’s disadvantage. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987); Meadows v. State, 534 So. 2d 1233 (Fla. 4th DCA 1988). We, accordingly, reverse and remand to the trial court to vacate the appellant’s conviction and sentence for grand theft.
It is not necessary, however, to re-sentence the appellant since the recommended guidelines range remains the same after the points for the grand theft offense are removed from the appellant’s score-sheet. See Huggins v. State, 537 So. 2d 207 (Fla. 4th DCA 1989). We find no merit in the appellant’s remaining contentions and, therefore, affirm the trial court in all other respects.
Affirmed in part, reversed in part, and remanded with instructions.
CAMPBELL, C.J., and RYDER and SCHOONOVER, JJ., concur.
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Crawford v. State, 549 So. 2d 1145 (Fla. 3d DCA 1989)…The State has acknowledged the trial court’s error in entering judgments of conviction and sentences for both robbery and theft based upon the single act of taking the victim’s purse, See Carawan v. State, 515 So. 2d 161 (Fla.1987); Kelly v. State, 546 So. 2d 441 (Fla. 2d DCA 1989); Etlinger v. State, 538 So. 2d 1354 (Fla. 2d DCA 1989); Cole v. State, 530 So. 2d 983 (Fla. 5th DCA), rev. denied, 539 So. 2d 475 (Fla.1988), and we therefore vacate appellant’s conviction and sentence for theft. The State also h…
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Netherly v. State, 608 So. 2d 911 (Fla. 2d DCA 1992)…time protected a defendant’s right against double jeopardy by mandating that his convictions for grand theft and aggravated assault not stand together with the conviction for armed robbery. State v. Bing, 514 So. 2d 1101 (Fla.1987); Kelly v. State, 546 So. 2d 441 (Fla. 2d DCA 1989) (double jeopardy violated to convict for grand theft and armed robbery); Sands v. State, 542 So. 2d 436 (Fla. 2d DCA 1989) (double jeopardy violated to convict for aggravated assault and armed robbery). This is so because the crim…
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Seay v. State, 550 So. 2d 34 (Fla. 2d DCA 1989)…. Of the issues raised, we find merit only in the contention that the appellant was improperly convicted of grand theft for the same stolen money that was the object of the armed robbery. We recently addressed this identical issue in Kelly v. State, 546 So. 2d 441 (Fla. 2d DCA 1989), and concluded, on the authority of Carawan v. State, 515 So. 2d 161 (Fla.1987), that the conviction for grand theft, which is a lesser included offense of armed robbery, could not stand. Although Carawan has been superseded by se…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Barritt, 531 So. 2d 338 (Fla. 1988)
- Huggins v. State, 537 So. 2d 207 (Fla. 4th DCA 1989)
- The Sch. Bd. OF Broward Cnty. v. Aguilar, 534 So. 2d 1233 (Fla. 4th DCA 1988)
- Meadows v. State, 534 So. 2d 1233 (Fla. 4th DCA 1988)