ANDREW GRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andrew Gray appeals his convictions for dealing in stolen property and grand theft. The court affirmed the denial of his motion for acquittal but reversed his grand theft conviction due to a statutory prohibition against dual convictions for these crimes arising from the same conduct, and remanded for resentencing after correcting a sentencing score that improperly included an outdated juvenile offense.
The court affirmed the denial of the motion for acquittal because sufficient evidence supported both charges. However, the court reversed the grand theft conviction because Florida Statutes Section 812.025 prohibits conviction on both grand theft and dealing in stolen property charges arising from the same scheme or course of conduct. The court also reversed the sentence because the trial court improperly included a juvenile offense more than three years old in the guidelines calculation.
[1] A trial court properly denies a motion for judgment of acquittal when the state presents sufficient evidence to establish a prima facie case for the charged offenses.
[2] A statute prohibiting conviction for both grand theft and dealing in stolen property when arising from the same scheme or course of conduct applies even when the offenses…
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Join FLexlaw to unlock all legal intelligence“while Section 812.025, Florida Statutes (1989), allows the state to charge in a single indictment or information both grand theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, the statute prohibits the trier of fact from returning a guilty verdict on both counts.”
Establishes the core holding that dual convictions for these crimes are prohibited when arising from the same conduct.
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Join FLexlaw to unlock all legal intelligenceGray was charged in a single indictment with both grand theft and dealing in stolen property. The evidence showed these offenses were part of one sche…
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ERVIN, Judge.
Appellant, Andrew Gray, challenges his convictions and sentences for dealing in stolen property and grand theft. He argues that the trial court erred by denying his motion for judgment of acquittal, by convicting and sentencing him for both crimes, contrary to Section 812.025, Florida Statutes, and by including a juvenile adjudication that was more than three years old when computing his guideline sentence. We affirm in part and reverse and remand in part.
First, our review of the record discloses that the state presented sufficient evidence to establish a prima facie case as to both offenses. The trial court therefore properly denied appellant’s motion for judgment of acquittal, and we affirm as to this issue.
Second, while Section 812.025, Florida Statutes (1989), allows the state to charge in a single indictment or information both grand theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, the statute prohibits the trier of fact from returning a guilty verdict on both counts. Here, the charging document and the record evidence reflect that the offenses were part of one scheme or course of conduct; therefore, the trial court erred by imposing separate adjudications of guilt upon appellant for both grand theft and dealing in stolen property. See Daniels v. State, 422 So. 2d 1024 (Fla. 1st DCA1982); Kelly v. State, 397 So. 2d 709 (Fla. 5th DCA1981). Accord Hudson v. State, 408 So. 2d 224 (Fla. 4th DCA1981) (section 812.025 prohibited convictions for both grand theft, charged under the 1977 statutes, and dealing in stolen property, charged under the 1979 statutes). Appellant’s conviction and sentence for third-degree grand theft, the lesser of the two crimes,1 are therefore vacated.
Third, Florida Rule of Criminal Procedure 3.701(d)(5)(c) provides that only juvenile offenses occurring within three years of the primary offense should be included in the prior record when calculating a defendant’s guidelines sentencing score. Here, the trial court erroneously included a juvenile offense that was more than three years old while determining appellant’s sentence, and the state has conceded the error. Because the scoring error results in a lower cell score, appellant’s dealing in stolen property sentence must be reversed and the case remanded for resentencing after recalculation of the score-sheet. See Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA), approved, 586 So. 2d 340 (Fla.1991).
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this decision.
WIGGINTON and ZEHMER, JJ., concur. . See §§ 812.014(2)(c)(l) & 812.019(1), Fla.Stat. (Supp.1990 & 1989).
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Sherwin James Miller v. State, 636 So. 2d 144 (Fla. 1st DCA 1994)…refrom. Spinkellink v. State, 313 So. 2d 666, 670 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); Gay v. State, 607 So. 2d 454, 457 (Fla. 1st DCA 1992), review denied, 620 So. 2d 760 (Fla.1993). See also Gray v. State, 611 So. 2d 100, 101 (Fla. 1st DCA 1992). Where the state has produced competent evidence to support every element of the crime, a judgment of acquittal is not proper. Gay, 607 So. 2d at 457. The elements of the offense of battery on a law enforcement officer are:…
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Wilson v. State, 884 So. 2d 74 (Fla. 2d DCA 2004)…r set of circumstances.” Id. Consequently, we conclude that the State correctly concedes error. The State also correctly indicates that the lesser of the two convictions, the grand theft conviction, should be vacated. See id. at 1158; Gray v. State, 611 So. 2d 100, 101 (Fla. 1st DCA 1992); T.S.R. v. State, 596 So. 2d 766, 767 (Fla. 5th DCA 1992). VI. CONCLUSION We affirm Wilson’s conviction and sentence for dealing in stolen property. We reverse his conviction and sentence for grand theft. Affirmed in part…
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Williams v. State, 66 So. 3d 360 (Fla. 2d DCA 2011)…r set of circumstances.” Id. Consequently, we conclude that the State correctly concedes error. The State also correctly indicates that the lesser of the two convictions, the grand theft conviction, should be vacated. See id. at 1158; Gray v. State, 611 So. 2d 100, 101 (Fla. 1st DCA 1992); T.S.R. v. State, 596 So. 2d 766, 767 (Fla. 5th DCA 1992). [*365] Wilson v. State, 884 So. 2d 74, 77 (Fla. 2d DCA 2004). In this case, the trial court gave Mr. Williams the benefit of section 812.025, but it is not entirely…
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
- Carter v. State, 586 So. 2d 340 (Fla. 1991)
- Louie Anthony Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA 1991)
- Fernandez v. Efigenia Nancy Fernandez, 578 So. 2d 339 (Fla. 3d DCA 1991)
- Kelly v. State, 397 So. 2d 709 (Fla. 5th DCA 1981)
- Hudson v. State, 408 So. 2d 224 (Fla. 4th DCA 1981)
- Daniels v. State, 422 So. 2d 1024 (Fla. 1st DCA 1982)