JON C. FORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jon Ford pleaded nolo contendere to five counts of theft, including grand theft of a motor vehicle and grand theft of construction equipment found inside that vehicle. The court reversed his conviction for grand theft of the construction equipment, finding it violated double jeopardy principles because it was subsumed into the grand theft of the motor vehicle conviction based on a single, simultaneous taking.
Ford's conviction for grand theft in count II must be reversed as it violates double jeopardy because it was subsumed into the grand theft conviction in count I. When there is only one act of taking with no geographic or temporal separation between the takings, separate convictions for theft of the vehicle and its contents are precluded.
[1] A conviction for grand theft of construction equipment is subsumed into a conviction for grand theft of a motor vehicle when the equipment was inside the vehicle at the t…
[2] A defendant does not waive the right to raise a double jeopardy violation by entering pleas in open court.
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Join FLexlaw to unlock all legal intelligence“Because appellant pled in open court to the charges against him, there is nothing to suggest that he waived his right to raise this double jeopardy violation.”
Establishes that Ford did not waive his right to challenge the double jeopardy violation despite his plea
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Join FLexlaw to unlock all legal intelligenceFord stole a motor vehicle that contained construction equipment and tools at the time of the theft. He entered pleas of nolo contendere in open court…
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SHAHOOD, J.
Appellant entered pleas of nolo conten-dere in open court to five counts as charged in the Information, including grand theft of a motor vehicle (count I) and grand theft of construction equipment and/or tools (count II) and was given consecutive sentences on these two counts.
On appeal, appellant claims that his conviction for grand theft in count II is violative of the double jeopardy clause, as it was subsumed into his conviction for grand theft in count I. The state concedes error and we agree that reversal is required.
Because appellant pled in open court to the charges against him, there is nothing to suggest that he waived his right to raise this double jeopardy violation. See Novaton v. State, 634 So. 2d 607, 608 (Fla.1994).
In Beaudry v. State, 809 So. 2d 83 (Fla. 5th DCA 2002), the defendant stole a car containing computer equipment and was convicted of grand theft of a motor vehicle and grand theft of $10,000 or more. The Fifth District held that double jeopardy precluded convictions for both grand theft of a motor vehicle and grand theft of the contents of the vehicle (computer equipment), when there was only one act of taking, i.e., the car and its contents, with no geographic or temporal separations between the two acts of taking. See id. at 84; see also Sirmons v. State, 634 So. 2d 153 (Fla.1994)(defendant could not be convicted separately for offenses of robbery with a weapon and grand theft of automobile based on single taking of the automobile at knife point; both offenses were merely aggravated forms of the same underlying theft and occurred simultaneously).
In this case, like Beaudry, appellant’s taking of the vehicle occurred simultaneously with the taking of the construction equipment which was inside the vehicle at the time of the vehicle theft. Thus, there was no separation of time, place or circumstances between the takings to make the two offenses separate and distinct. Accordingly, the grand theft of construction equipment in count II is subsumed into the grand theft of a motor vehicle in count I.
REVERSED AND REMANDED.
WARNER and KLEIN, JJ., concur.
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Mixson v. State, 857 So. 2d 362 (Fla. 1st DCA 2003)…hicle and grand theft of construction tools and/or equipment finding the defendant’s “taking of the vehicle occurred simultaneously with the taking of the construction equipment which was already inside the vehicle at the time of the vehicle theft.” 849 So. 2d 477 (Fla. 4th DCA 2003). See also Wilson v. State, 776 So. 2d 347, 352 (Fla. 5th DCA 2001) (allowing only one conviction for theft to stand where defendant, during the course of a burglary, took personal property worth $300 or more, but less than $20,00…
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Demps v. State, 965 So. 2d 1242 (Fla. 4th DCA 2007)…State, 430 So. 2d 446 (Fla.1983), the case the trial court cited but which is distinguishable. A defendant who enters a general or open plea does not waive double jeopardy claims. Novatan v. State, 634 So. 2d 607 (Fla.1994). See also Ford v. State, 849 So. 2d 477 (Fla. 4th DCA 2003). In this case, appellant made an open plea to the court. Therefore, the claim that trial counsel was ineffective in failing to raise the double jeopardy violation, which would have reduced his lowest permissible sentence, has not…
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Moore v. State, 904 So. 2d 647 (Fla. 4th DCA 2005)…e of the crime committed under subsection (1). We conclude that the value of the goods or the taking of a firearm merely defines the degree of the felony and does not constitute separate crimes.” Johnson, 597 So. 2d at 799. Indeed in Ford v. State, 849 So. 2d 477 (Fla. 4th DCA 2003), we recently applied this very same rationale to the identical issue: “appellant’s taking of the vehicle occurred simultaneously with the taking of the construction equipment which was inside the vehicle at the time of the vehic…
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
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- Sirmons v. State, 634 So. 2d 153 (Fla. 1994)
- State v. Benedetti, 809 So. 2d 83 (Fla. 5th DCA 2002)
- Beaudry v. State, 809 So. 2d 83 (Fla. 5th DCA 2002)