WILLIE CLAYTON MILLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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FARMER, C.J.
The state concedes that defendant’s dual convictions for grand theft and robbery of the same property constitute double jeopardy. We agree with that concession. See Sirmons v. State, 634 So. 2d 153 (Fla.1994) (holding that convictions for strong armed robbery and grand theft for taking of same property constitute double jeopardy); Junior v. State, 763 So. 2d 1056 (Fla. 4th DCA 1999) (same).
In addition, grand theft is a lesser included offense of robbery. Fla. Std. Jury Instr. (Crim.) 295; Santos v. State, 644 So. 2d 171 (Fla. 4th DCA 1994) (conviction of robbery and grand theft error under Sirmons). Accordingly, we affirm the robbery conviction and vacate the grand theft conviction. Because eliminating the grand theft conviction will not affect appellant’s sentence, however, there may be no need for resentencing. Santos, 644 So. 2d at 172. We leave that decision up to the trial judge.
REVERSED.
POLEN, J., and ANDREWS, ROBERT LANCE, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Detavioun D. Ingram v. State, 928 So. 2d 1262 (Fla. 4th DCA 2006)…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 1274 (Fla. 4th DCA 2004). The State agrees. For this reason, we reverse and remand the case for the trial court to vacate the grand theft conviction and sentence. Reversed and Remanded. STEVENSON, C.J., and GUNTHER J., concur.…
Authorities Cited
- Sirmons v. State, 634 So. 2d 153 (Fla. 1994)
- Junior v. State, 763 So. 2d 1056 (Fla. 4th DCA 1999)
- Marshall v. State, 644 So. 2d 171 (Fla. 4th DCA 1994)
- Santos v. State, 644 So. 2d 171 (Fla. 4th DCA 1994)