MICHAEL JUNIOR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dual convictions for strong armed robbery and grand theft arising from the same property violate double jeopardy protections.
Appellant was convicted of strong armed robbery and grand theft based on the taking of the same property. The information charged multiple offenses in…
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PER CURIAM.
Michael Junior challenges his dual convictions for strong armed robbery and grand theft on the ground that they violate his constitutional protection against double jeopardy under article I, section 9, of the Florida Constitution and the Fifth and Fourteen Amendments to the United States Constitution. We agree.
Appellant was charged, in a six count information, with burglary (Count I), kidnapping (Count II), sexual battery with great force (Count III), lewd and lascivious act upon an elderly person (Count IV), strong armed robbery (Count V), and grand theft (Count VI). The robbery and theft counts describe the same property in satisfying the statutory elements, i.e., “jewelry, and cash, good and lawful currency of the United States of America, and keys.” The trial court adjudicated the appellant guilty of strong armed robbery and grand theft based on the taking of the same property.
We find that the dual convictions are contrary to our supreme court’s holding in Sirmons v. State, 634 So. 2d 153 (Fla.1994). See § 775.021(4)(b), Fla. Stat. (1997). Additionally, grand theft is a lesser included offense of robbery. Fla. Std. Jury Instr. (Crim.) 295; Guinto v. State, 693 So. 2d 46 (Fla. 4th DCA 1997); Santos v. State, 644 So. 2d 171 (Fla. 4th DCA 1994) (conviction of robbery and grand theft erroneous under Sirmons).
Accordingly, we affirm the robbery conviction and vacate the grand theft conviction. Hardy v. State, 705 So. 2d 979 (Fla. 4th DCA 1998). However, because vacating the grand theft conviction will not affect appellant’s sentence, there is no need to remand for resentencing. Santos.
AFFIRMED in part, REVERSED in part.
WARNER, STEVENSON and TAYLOR, JJ., concur.
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McKINNEY v. State, 66 So. 3d 852 (Fla. 2011)…both convictions).4 In Ingram, the Fourth District noted that “[tjheft is a permissive lesser included offense of robbery with a firearm or deadly weapon.” Ingram, 928 So. 2d at 1263 (citing Fla. Std. Jury Instr. (Crim.) 15.1 tbl.; Junior v. State, 763 So. 2d 1056 (Fla. 4th DCA 1999)). However, the Ingram decision predates this Court’s decision in Valdes, and is therefore not persuasive. The Fifth District reached the opposite conclusion in McKinney after applying Valdes. Noting that “there is no constitutio…
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Detavioun D. Ingram v. State, 928 So. 2d 1262 (Fla. 4th DCA 2006)…s guarantee protection against double jeopardy. Amends. V, XIV, U.S. Const.; Art. I, § 9, Fla. Const. Theft is a permissive lesser included offense of robbery with a firearm or deadly weapon. Fla. Std. Jury Instr. (Crim.) 15.1 tbl.; Junior v. State, 763 So. 2d 1056 (Fla. 4th DCA 1999). When the property taken is the basis for both the conviction for robbery and grand theft, then the defendant’s double jeopardy rights have been violated. Sirmons v. State, 634 So. 2d 153 (Fla.1994); Miller v. State, 867 So. 2d 1…
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Gorday v. State, 907 So. 2d 640 (Fla. 3d DCA 2005)…of forged credit card and grand theft are degrees of the same offense, appellant’s conviction for grant theft vacated and conviction for fraudulent use of credit card upheld); Ross v. State, 760 So. 2d 214 (Fla. 2d DCA 2000)(same); Junior v. State, 763 So. 2d 1056 (Fla. 4th DCA 1999)(dual convictions for strong armed robbery and grand theft based on the taking of the same property cannot stand); State v. McDonald, 690 So. 2d 1317 (Fla. 2d DCA 1997)(proseeution and sentence for grand theft violated double jeop…
Previewing 3 of 4 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)
- Hardy v. State, 705 So. 2d 979 (Fla. 4th DCA 1998)
- Guinto v. State, 693 So. 2d 46 (Fla. 4th DCA 1997)
- Marshall v. State, 644 So. 2d 171 (Fla. 4th DCA 1994)
- Santos v. State, 644 So. 2d 171 (Fla. 4th DCA 1994)