DARLA WOLF, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darla Wolf appealed her convictions for petit theft and fraudulent use of a credit card arising from a single act. The Florida Fifth District Court of Appeal agreed that petit theft is a necessarily lesser included offense of fraudulent use of a credit card, and therefore convictions for both offenses violate the prohibition against cumulative convictions under Florida Statute § 775.021(4).
Petit theft is a necessarily lesser included offense of fraudulent use of a credit card because every element required for theft is present in credit card fraud. Therefore, convictions for both offenses arising from a single act violate § 775.021(4), and the conviction for petit theft must be vacated.
[1] Convictions for both petit theft and fraudulent use of a credit card arising out of a single act are improper.
[2] Legislative intent governs the propriety of cumulative convictions and punishments in a single trial.
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“petit theft does not require any element that is not found in the fraudulent use of a credit card. Element (2) of theft as described above will always be found within element (1) of credit card fraud, since the intent to defraud can consist of no less than intending, temporarily or permanently, to deprive someone else of the use of or benefits from his or her property or to misappropriate the property.”
Establishes that every element of theft is contained within credit card fraud, making theft a necessarily lesser included offense.
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Join FLexlaw to unlock all legal intelligenceWolf was charged with grand theft but convicted of the lesser offense of petit theft. She was also convicted of felony fraudulent use of a credit card…
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GRIFFIN, Judge.
Appellant, Darla Wolf, appeals her convictions for petit theft and felony fraudulent use of a credit card, raising multiple claims of error. We find merit in only one. We agree that convictions for both petit theft and fraudulent use of a credit card arising out of a single act is improper. § 775.021(4), Fla. Stat. (1993).
Legislative intent governs the propriety of cumulative convictions and punishments in a single trial. Thompson v. State, 585 So. 2d 492, 493 (Fla. 5th DCA 1991), approved in full 607 So. 2d 422 (Fla.1992). As defined by the legislature, the basic elements of theft are set forth below:
Theft is:
(1) knowingly (a) obtaining or using the property of another, or (b) endeavoring to obtain or to use the property of another (2) with the intent to temporarily or permanently:
(a) deprive the other of a right to or benefit from the property, or (b) appropriate the property to one’s own use or to the use of any person not entitled thereto.
§ 812.014(1), Fla. Stat. (1993). A theft is deemed to be petit theft unless the value of the affected property exceeds $300. § 812.014(2)(d). Wolf was charged with grand theft, but was convicted of the lesser offense of petit theft.
Fraudulent use of a credit card is defined as:
(1) With the intent to defraud,
(2)(a) using for the purpose of obtaining money, goods, services, or anything else of value:
(1) a credit card obtained or retained in violation of Chapter 817, part II, or (2) a credit card which one knows is forged, or,
(b) obtaining money, goods, services or anything else of value:
(1) by representing, without the consent of the cardholder, that one is the holder of a specified card, or (2) by representing that one is the holder of a card and such card has not in fact been issued.
§ 817.61, Fla. Stat. (1993).
While use of a credit card contains several elements that are not required to commit petit theft, petit theft does not require any element that is not found in the fraudulent use of a credit card. Element (2) of theft as described above will always be found within element (1) of credit eard fraud, since the intent to defraud can consist of no less than intending, temporarily or permanently, to deprive someone else of the use of or benefits from Ms or her property or to misappropriate the property. Furthermore, element (1) of theft will be satisfied whenever a credit card fraud is present, since a fraud completed through element (2)(a) will constitute element (l)(b) of theft as “endeavoring to obtain or to use the property of another,” and a fraud completed through element (2)(b) will always satisfy the “obtaining or using the property of another” requirement of theft’s element (l)(a). In other words, it is not possible to commit an offense under section 817.61 and not commit a theft; therefore, petit theft is a necessarily lesser included offense of fraudulent use of a credit card.1 Wolfs convictions for both offenses, wMch arose out of the same act or acts, thus cannot stand. The conviction and sentence for petit theft are therefore vacated. See State v. Barton, 523 So. 2d 152, 153 (Fla.1988).
AFFIRMED in part; REVERSED in part; and REMANDED.
W. SHARP and THOMPSON, JJ., concur. . Depending on the value of the property involved, a person who commits fraudulent use of a credit card may also commit the separate offense of grand theft. This dichotomy is bottomed on the fact that there is no monetary element in petit theft and parallels the established rule that petit theft is a necessarily lesser included offense of robbery. See State v. Rodriquez, 500 So. 2d 120, 122 (Fla.1986); Sullivan v. State, 631 So. 2d 1142 (Fla. 1st DCA 1994); Simmons v. State, 551 So. 2d 607, 608 (Fla. 5th DCA 1989). It would follow that, as with robbery, see Rodriquez, 500 So. 2d at 122; J.C.B. v. State, 512 So. 2d 1073, 1074 (Fla. 1st DCA 1987), review denied, 520 So. 2d 586 (Fla.1988), grand theft cotdd not be a necessarily lesser included offense of felony fraudulent use of a credit card, since the various levels of grand theft each contain monetary elements.
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Doyle Fryer v. State, 732 So. 2d 30 (Fla. 5th DCA 1999)…offense of robbery still appears to be “subsumed” within the more limited offense of carjacking, in that every carjacking is also a robbery, albeit a specialized form of robbery. An analogous holding was reached by this [*33] court in Wolf v. State, 679 So. 2d 351 (Fla. 5th DCA 1996), in which this court held that petit theft was a necessarily lesser included offense of fraudulent use of a credit card. The Wolf court reasoned that petit theft (which is the broader offense, since it involves all forms of theft…
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State v. McDONALD, 690 So. 2d 1317 (Fla. 2d DCA 1997)…812. Thompson, 585 So. 2d at 494. The court further noted that “an act of criminal fraud should be prosecuted either under Florida’s Anti-Fencing Act or under a more specific statute contained in Chapter 817.” The Fifth District, in Wolf v. State, 679 So. 2d 351, 353 n. 1 (Fla. 5th DCA 1996), found that the convictions for both grand theft and felony fraudulent use of a credit card arising out of a single act could stand because the grand theft charge contained a monetary element which was not an element in…
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Gorday v. State, 907 So. 2d 640 (Fla. 3d DCA 2005)…. McDonald, 690 So. 2d 1317 (Fla. 2d DCA 1997)(proseeution and sentence for grand theft violated double jeopardy where defendant had been convicted of fraudulent credit card use and offenses arose out of [*645] same criminal episode); Wolf v. State, 679 So. 2d 351 (Fla. 5th DCA 1996)(convictions for both petit theft and fraudulent use of a credit card arising out of a single act is improper). Notwithstanding this exception, the State asserts that the armed robbery and credit card theft did not arise out of t…
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
- State v. Barton, 523 So. 2d 152 (Fla. 1988)
- State v. Thompson, 607 So. 2d 422 (Fla. 1992)
- State v. Rodriquez, 500 So. 2d 120 (Fla. 1986)
- Thompson v. State, 585 So. 2d 492 (Fla. 5th DCA 1991)
- In the Interest of J.C.B. v. State, 512 So. 2d 1073 (Fla. 1st DCA 1987)
- Hildagarde Simmons v. State, 551 So. 2d 607 (Fla. 5th DCA 1989)
- Sullivan v. State, 631 So. 2d 1142 (Fla. 1st DCA 1994)