JOHN NASH, APPELLANT,
v.
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.
John Nash appeals his armed robbery and grand theft convictions in Broward County on double jeopardy grounds. The Florida District Court of Appeal reverses both convictions, holding that Nash cannot be convicted of both offenses based on the same underlying act since grand theft is a lesser included offense of armed robbery, and that he was previously convicted of grand theft for the same automobile theft in Palm Beach County.
The Broward County grand theft conviction and sentence must be vacated under double jeopardy grounds as the same offense as the prior Palm Beach County conviction. Additionally, the armed robbery conviction and sentence must be vacated because grand theft is a lesser included offense of armed robbery, and a defendant cannot be convicted of both based on the same underlying act. The trial court also improperly assessed costs and trust fund monies without notice and a hearing.
[1] A prosecution for an offense in one county is barred if the defendant has been previously convicted of the same offense in another county.
[2] A defendant cannot be convicted of both grand theft and armed robbery based on the same underlying act, as grand theft is a lesser included offense of armed robbery.
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“Section 910.-11(2), Florida Statutes (1987), bars the prosecution of an offense in one county when a person has been previously acquitted or convicted of the same offense in another county.”
Establishes the statutory basis for vacating the Broward County grand theft conviction due to the prior Palm Beach County conviction for the same offense
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Join FLexlaw to unlock all legal intelligenceNash stole an automobile at knifepoint in Broward County and drove it into Palm Beach County, where he was arrested, charged, convicted, and sentenced…
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PER CURIAM.
Nash appeals on double jeopardy grounds the convictions and sentences for armed robbery and grand theft rendered in the Broward County Circuit Court. We reverse.
Nash stole, at knifepoint, an automobile in Broward County and drove the vehicle into Palm Beach County. He was arrested, charged, convicted and sentenced for grand theft in Palm Beach County. Broward County then charged Nash with armed robbery and grand theft for the theft of the same automobile. The record does not disclose why the State Attorneys’ Office for Palm Beach County did not confer with the Broward County State Attorney prior to filing its charge against Nash in Palm Beach County. The Broward County Circuit Court denied Nash’s motion to dismiss both the grand theft and armed robbery counts of the information and convicted and sentenced Nash on both counts. The state concedes that Nash’s Bro-ward County grand theft conviction and sentence must be vacated on double jeopardy grounds because it constitutes the same offense as does his prior Palm Beach County grand theft conviction and sentence. We agree and reverse the Broward County conviction of grand theft. Section 910.-11(2), Florida Statutes (1987), bars the prosecution of an offense in one county when a person has been previously acquitted or convicted of the same offense in another county.
We further hold that Nash’s Bro-ward County armed robbery conviction and sentence must also be vacated on double jeopardy grounds. A defendant cannot be convicted of both grand theft and armed robbery based on the same underlying act since grand theft is a lesser included offense of armed robbery. See Carawan v. State, 515 So. 2d 161 (Fla. 1987); State v. Bing, 514 So. 2d 1101 (Fla.1987); Young v. State, 454 So. 2d 586 (Fla. 4th DCA 1984), rev. denied, 461 So. 2d 116 (Fla.1985). Here, Nash’s armed robbery and grand theft convictions were based upon a single underlying act — the theft of the automobile in Broward County. Double jeopardy considerations mandate that Nash's Broward County conviction for the greater included offense of armed robbery be vacated.
The state maintains that section 775.-021(4), Florida Statutes, as recently amended on July 1, 1988, controls and requires affirmance of Nash’s armed robbery conviction. This court held in Meadows v. State, 534 So. 2d 1233 (Fla. 4th DCA 1988), that section 775.021(4) should not be applied retroactively. See also Rivera v. State, 547 So. 2d 140 (Fla. 4th DCA 1989); Johnson v. State, 535 So. 2d 651, 653 n. 3 (Fla. 3d DCA 1988); Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988).
Finally, we hold that the trial court improperly assessed costs and trust fund monies against Nash without notice and a hearing prior to the assessment of same. See Mays v. State, 519 So. 2d 618 (Fla.1988); Jenkins v. State, 444 So. 2d 947 (Fla.1984); Ivey v. State, 519 So. 2d 648 (Fla. 4th DCA 1988).
REVERSED.
HERSEY, C.J., GLICKSTEIN and DELL, JJ., concur.
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Citator
Cited By
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Ashman v. State, 886 So. 2d 1079 (Fla. 5th DCA 2004)…l be a bar to prosecution for the same offense in another county.” In Adams v. State, 659 So. 2d 396 (Fla. 2d DCA 1995), the court noted that even though a kidnapping was committed in more than one county, it was still one offense. In Nash v. State, 547 So. 2d 147 (Fla. 4th DCA 1989), [*1081] the court held pursuant to section 910.11(2), that a defendant’s conviction for grand theft in the county in which he stole automobile and in the county to which he drove automobile violated double jeopardy. See also Bea…
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McMULLEN v. State, 570 So. 2d 1032 (Fla. 4th DCA 1990)…costs at that time. The imposition of Trust Fund costs were set out in the Final Judgment in the amount of $250.00. The trial court is hereby reversed and this cause remanded due to the imposition of costs without notice or a hearing. Nash v. State, 547 So. 2d 147 (Fla. 4th DCA 1989); Patchin v. State, 544 So. 2d 282 (Fla. 4th DCA 1989). The appellant’s sentence is reversed and remanded for resentencing. REVERSED AND REMANDED FOR RESENTENCING. ANSTEAD, GUNTHER and WARNER, JJ., concur.…
Authorities Cited (11 total)
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- Mays v. State, 519 So. 2d 618 (Fla. 1988)
- Heath v. State, 532 So. 2d 9 (Fla. 1st DCA 1988)
- Rommell Johnson v. State, 535 So. 2d 651 (Fla. 3d DCA 1988)
- Rivera v. State, 547 So. 2d 140 (Fla. 4th DCA 1989)
- THE Florida BAR v. Long, 514 So. 2d 1101 (Fla. 1987)
- 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)
- Young v. State, 454 So. 2d 586 (Fla. 4th DCA 1984)