J.M., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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J.M., a juvenile, was adjudicated delinquent and committed on both armed robbery and grand theft charges arising from a single incident where he took a motor vehicle and keys from the victim at gunpoint. The appellate court reversed the grand theft conviction as a lesser included offense of armed robbery, finding that only one crime occurred and multiple convictions were improper.
J.M. cannot be adjudicated on both counts because armed robbery and grand theft auto are merely a degree variance of the same core offense of theft, and only one taking occurred. The court quashed the lesser serious felony (grand theft) and affirmed the more serious offense (armed robbery).
[1] A defendant cannot be convicted separately for armed robbery and grand theft auto when the offenses are degrees of the same core offense of theft.
[2] When robbery is accomplished by taking car keys and other property, and then immediately proceeding to the stolen vehicle, only one taking has occurred.
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Join FLexlaw to unlock all legal intelligence“When robbery is accomplished by a defendant entering a residence and taking car keys along with other property and then proceeding immediately to the stolen vehicle, only one taking has occurred.”
Establishes the legal principle that a single act of taking in a robbery negates separate grand theft conviction
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Join FLexlaw to unlock all legal intelligenceJ.M. entered an apartment where the victim Respoli was present with a BB gun, demanded money and car keys, and when Respoli said he had no money, J.M.…
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W. SHARP, Judge.
J.M. argues on appeal that the trial court erroneously adjudicated and sentenced him on both counts of armed robbery1 and grand theft2. He was found guilty on both counts, adjudicated a delinquent, and sentenced to a Level 10 commitment. We agree that J.M. should not have been adjudicated on the basis of both counts, under the circumstances of this case.
The evidence at trial disclosed, without dispute, that an individual identified as J.M. by Respoli, the victim, stormed into the apartment where Respoli was drinking a beer. J.M. had a BB gun in his hand. He demanded money and the car keys, which Respoli had dangling from his pinky finger. Respoli responded that he had no money. J.M. then grabbed the car keys out of Respo-li’s hand, ran out the door, and drove off in Respoli’s girlfriend’s car, a brown Pontiac Respoli had been driving.
The robbery count specifically described the property taken from Respoli during the robbery: “money or other property, to wit: a motor vehicle, vehicle keys.... ” In the grand theft count, the property taken was described as “a motor vehicle, to wit: Pontiac, the property of James Respoli, as owner or custodian....”
When robbery is accomplished by a defendant entering a residence and taking car keys along with other property and then proceeding immediately to the stolen vehicle, only one taking has occurred. Castleberry v. State, 402 So. 2d 1231 (Fla. 5th DCA 1981). In Castleberry, we held that because possession of the vehicle was obtained as a product of the same force and fear involved in the robbery, the taking of the car was a lesser included offense of the robbery charge.
In Sirmons v. State, 634 So. 2d 153 (Fla.1994), the Florida Supreme Court held that a defendant cannot be convicted separately for the offenses of armed robbery and grand theft auto because they are merely a degree variance of the same core offense of theft. Id. at 154. Multiple punishments or convictions are not permitted if the offenses in question are degrees of the same offense pursuant to section 775.021(4)(b)2, Florida Statutes (1989). See also Crittenden v. State, 684 So. 2d 857 (Fla. 5th DCA 1996), rev. denied, 690 So. 2d 1300 (Fla.1997); Ricks v. State, 656 So. 2d 633 (Fla. 5th DCA 1995).
Here, the same property was charged as having been taken as a result of both the robbery and the theft (ie., a motor vehicle and vehicle keys) and there was only one “taking” of that property charged and proven at trial. Thus there was only one crime committed. Accordingly, we quash the less serious felony (grand theft) and affirm the more serious offense (armed robbery) and remand for resentencing.
AFFIRMED in part; REVERSED in part; REMANDED for Resentencing.
COBB and HARRIS, JJ., concur. . § 812.13, Fla. Stat. (1995).
. § 812.014, Fla. Stat. (Supp.1996).
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Hayes v. State, 803 So. 2d 695 (Fla. 2001)…’s decision in Henderson and disapprove of the Fifth District’s decision in Castleberry. It is so ordered.11 WELLS, C.J., and SHAW, HARDING, ANSTEAD, LEWIS, and QUINCE, JJ., concur. . The Third District also certified conflict with J.M. v. State, 709 So. 2d 157 (Fla. 5th DCA 1998). See Hayes, 748 So. 2d at 1045. However, J.M. is distinguishable "because the same property was charged as having been taken as a result of both the robbery and the theft (i.e., a motor vehicle and vehicle keys) and there was onl…
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Hayes v. State, 748 So. 2d 1042 (Fla. 3d DCA 1999)…Fla. 3d DCA 1992).2 The auto theft occurs not upon the [*1045] taking of the keys but on the subsequent taking of the car. We recognize that the Fifth District Court of Appeal takes a different view and we certify direct conflict with J.M. v. State, 709 So. 2d 157 (Fla. 5th DCA 1998), and Castelberry v. State, 402 So. 2d 1231 (Fla. 5th DCA 1981). After the court gave jury instructions, the court addressed the procedure to follow if the jury had any questions. The court explained that the law limits the abili…
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Darris Taylor v. State, 751 So. 2d 659 (Fla. 5th DCA 1999)…g of the same property involved in the armed robbery charge. A closer issue is whether Taylor’s conviction for theft of the motor vehicle should be vacated, given his conviction for armed robbery, based on the principles announced in J.M. v. State, 709 So. 2d 157 (Fla. 5th DCA 1998). In J.M., the court found that dual convictions for robbery and grand theft auto were improper where both charges were based on an incident in which the defendant had snatched some keys from the victim’s hand, ran out the door, a…
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
- Sirmons v. State, 634 So. 2d 153 (Fla. 1994)
- Castelberry v. State, 402 So. 2d 1231 (Fla. 5th DCA 1981)
- Crittenden v. State, 684 So. 2d 857 (Fla. 5th DCA 1996)
- Burke v. State, 656 So. 2d 633 (Fla. 5th DCA 1995)