ROBERT CHRISTOPHER PIERCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Pierce was charged with armed robbery but convicted of the lesser included offense of grand theft. The court reversed because the charging document failed to allege the value of stolen property, which is an essential element of grand theft, making grand theft an impermissible lesser included offense.
A defendant cannot be convicted of grand theft as a lesser included offense of robbery when the charging document fails to allege the value of the stolen property. The court reversed the grand theft conviction and remanded for entry of a judgment for petit theft, which is a necessarily included offense of robbery.
[1] A defendant may not be convicted of a permissive lesser included offense when the charging document omits an essential element of that offense, absent waiver, affirmative…
[2] A defendant does not waive an error by failing to object after the court announces its intention to consider an uncharged element of an offense.
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“A defendant may not be convicted of a permissive lesser included offense where the charging document is silent as to an essential element of that offense, absent a waiver, affirmative conduct, or other exceptional circumstance.”
Establishes the rule that grand theft cannot be a permissible lesser included offense when the information does not allege the essential element of value.
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Join FLexlaw to unlock all legal intelligencePierce was charged by information with armed robbery. The charging document listed stolen items as "jewelry, money, shoes and car keys" but failed to …
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FARMER, Judge.
In this appeal from a conviction for grand theft, we reduce the conviction to petit theft and remand for resentencing.
The defendant was charged by information with armed robbery. The charging document described the articles taken merely as “jewelry, money, shoes and car keys,” without any allegation as to the value of the stolen property. During trial at the jury charge conference, when he became aware that the judge intended to instruct the jury on lesser included offenses, defense counsel objected to any instructions on offenses other than the armed robbery as charged.
Before submitting the case to the jury, the trial judge gave an instruction that, if it determined that the principal charge of robbery had not been proved beyond a reasonable doubt, the jury should decide whether the defendant was guilty of any lesser included offenses, one of which was grand theft. The crime of grand theft, he further instructed, required a determination that the value of the property taken exceeded $300. The jury returned a verdict of guilty, and defendant was adjudicated guilty, only as to the lesser included offense of grand theft. He appeals. We reverse.
A charge of robbery unavoidably includes the elements of the crime of petit theft, making petit theft a necessarily included offense of robbery. Compare § 812.13 with § 812.014(1), (2)(d), Fla.Stat. (1991); J.C.B. v. State, 512 So. 2d 1073 (Fla. 1st DCA 1987), rev. denied, 520 So. 2d 586 (Fla.1988). An essential element of the crime of grand theft is the value of the goods stolen. See §§ 812.014(2)(a), (b) and (c), Fla.Stat. (1991) (three degrees of grand theft: 1st degree, value $100,000 or more; 2nd degree, value $20,000 but less than $100,000; 3rd degree, value $300 but less than $20,000). The element of value sets grand theft apart from the crimes of robbery or petit theft. 512 So. 2d at 1074.
It is only where the charging document sufficiently alleges the appropriate value that grand theft becomes a permissive lesser included offense of the charge of robbery. 512 So. 2d at 1074-1075. Where the only charge is robbery, the state can preserve its right to a lesser included conviction for grand theft only by including in the information an allegation that sufficiently states the value of the property taken. 512 So. 2d at 1075 (value of property taken must be clear from accusatory pleading).
Although the information in this case listed the kinds of property — including the word “money” — taken by the robbery, it failed to state the amount of the cash or, indeed, ascribe any value to anything taken. There is simply nothing in this information that makes clear any values. As we said in In the Interest of E.W., 616 So. 2d 1194 (Fla. 4th DCA 1993), where we followed J.C.B.:
“A defendant may not be convicted of a permissive lesser included offense where the charging document is silent as to an essential element of that offense, absent a waiver, affirmative conduct, or other exceptional circumstance.”
Both E.W. and J.C.B., we note, involved a conviction for the lesser included crime of grand theft and a charging document that failed to state the value of the goods stolen.
We reject the state’s argument that defense counsel’s objection lacked specificity and thus waived review of this issue. Because the information is adequate to support a finding of petit theft, the judgment and sentence.are reversed, and the case is remanded to the trial court for entry of an amended judgment of petit theft and for resentencing.
REVERSED AND REMANDED WITH DIRECTIONS.
ANSTEAD and GUNTHER, JJ., concur.
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Milo Wilson v. State, 668 So. 2d 998 (Fla. 4th DCA 1995)…Pierce, this court clearly held that in order for the state to preserve its right to a lesser included conviction for grand theft, the information must contain an allegation that sufficiently states the value of the property taken. Pierce v. State, 641 So. 2d 439 (Fla. 4th DCA 1994). The information charged Wilson with unlawfully taking “money and jewelry” with the intent to permanently deprive. Like the facts in Pierce, the charging statement did not allege the value of the property taken. The state’s fail…
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Pereira v. State, 29 So. 3d 1186 (Fla. 5th DCA 2010)…e of grand theft of a dwelling includes two elements that are not found within the offense of strong arm robbery: the value of the property taken and the requirement that the property be taken from a dwelling. The defendant cites to Pierce v. State, 641 So. 2d 439, 439 (Fla. 4th DCA 1994), receded from on other grounds by Tolbert v. State, 679 So. 2d 816 (Fla. 4th DCA 1996), to support his claim of error. In Pierce, the defendant was originally charged with armed robbery; however, the information (as in the…
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Tolbert v. State, 679 So. 2d 816 (Fla. 4th DCA 1996)…“[a] defendant may not be convicted of a permissive lesser included offense where the charging document is silent as to an essential element of that offense, absent a waiver, affirmative conduct, or other exceptional circumstances.” Pierce v. State, 641 So. 2d 439, 440 (Fla. 4th DCA 1994) (citation omitted). Because an element of aggravated battery, namely great bodily harm, was not alleged in the information in the instant ease, the jury should not have been instructed on aggravated battery as a lesser inclu…
Authorities Cited
- In the Interest of J.C.B. v. State, 512 So. 2d 1073 (Fla. 1st DCA 1987)
- In the Interest of E.W., 616 So. 2d 1194 (Fla. 4th DCA 1993)