ROGER SIMON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant cannot be convicted of both grand theft and dealing in stolen property arising from the same conduct, as prohibited by statute.
The defendant was convicted of grand theft and dealing in stolen property involving the same items, among other offenses. The public defender argued t…
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In this Anders appeal,1 the public defender raised as a possible error the fact that Simon’s sentence for both grand theft and dealing in stolen property involving the same property was improper. The state agreed that the dual sentences cannot stand pursuant to section 812.025, Florida Statutes (2001). The statute provides:
Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts, (emphasis added).
In this case, Simon was charged with and convicted of grand theft of power tools, and dealing in stolen property (the power tools). He was also charged with and convicted of burglary of a conveyance and defrauding a pawn dealer. He was sentenced on all four charges and the sentences are within the statutory maximum.
In order to save judicial time and effort, we vacate the conviction and sentence for grand theft and affirm the balance of the judgment. See Mohansingh v. State, 824 So. 2d 1053, 1054 (Fla. 5th DCA 2002). Simons need not be resentenced because he was sentenced to ten years as an habitual offender for dealing in stolen property, and to probation for two years consecutive to the prison sentence for the other crimes. Thus, our vacating the grand theft sentence of probation will not affect the other three sentences.
AFFIRMED in part; REVERSED in part.
THOMPSON, C.J., and PALMER, J., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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Citator
Cited By
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Anucinski v. State, 90 So. 3d 879 (Fla. 2d DCA 2012)…2011) (affirming where trial court dismissed charge of third-degree grand theft after the jury returned a guilty verdict on both grand theft and dealing in stolen property); Williams v. State, 66 So. 3d 360 (Fla. 2d DCA 2011) (same); Simon v. State, 840 So. 2d 1173 (Fla. 5th DCA 2003). As the State has pointed out, and as the above cases illustrate, when a jury convicts a defendant of both grand theft and dealing in stolen property, trial courts do not have to engage in any determination of which conviction to…
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Guerra v. State (Fla. 5th DCA 2026)…e, 422 So. 2d 67, 68 (Fla. 2d DCA 1982); Kelly v. State, 397 So. 2d 709, 710 (Fla. 5th DCA 1981). Accordingly, we reverse and remand with directions that the trial court vacate Appellant's conviction and sentence for grand theft. See Simon v. State, 840 So. 2d 1173, 1174 (Fla. 5th DCA 2003); Kilmartin v. State, 848 So. 2d 1222, 1224 (Fla. 1st DCA 2003). We affirm without comment Appellant's jury instruction claim. AFFIRMED in part; REVERSED in part; and REMANDED with directions. JAY, C.J., and KILBANE and MA…
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Corvo v. State, 916 So. 2d 44 (Fla. 3d DCA 2005)…heft count to a stolen car, and the dealing in stolen property count to a stereo system). The Defendant’s conviction and ten-year sentence for grand theft must therefore be reversed. Wilson v. State, 884 So. 2d 74 (Fla. 2d DCA 2004); Simon v. State, 840 So. 2d 1173 (Fla. 5th DCA 2003). Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.…
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Shayne Mohansingh v. State, 824 So. 2d 1053 (Fla. 5th DCA 2002)