TERRANCE LAMAR WARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that dual convictions for robbery and grand theft arising from the same incident and property are improper under double jeopardy principles, but dual convictions for robbery and aggravated assault with a firearm are permissible.
[1] Double jeopardy precludes conviction for both robbery and grand theft when the property taken is the same, the offenses arise from the same criminal episode, and are comm…
[2] Aggravated assault with a firearm is not a necessarily lesser included offense of robbery with a firearm for double jeopardy purposes, as the statutory elements of each o…
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Join FLexlaw to unlock all legal intelligenceTerrance Lamar Ward was convicted of robbery with a firearm, aggravated assault with a firearm, and grand theft. The victim testified that Ward and an…
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THOMPSON, J.
Terrance Lamar Ward appeals his judgment and sentence for robbery with a firearm,1 aggravated assault with a firearm,2 and grand theft.3
At trial, the victim, Larry Moore, testified that he met a female who invited him to a party. He agreed to follow the female in his vehicle. Moore and the female stopped in a parking lot and began talking when Ward appeared with a gun pointed at Moore’s vehicle and yelled for Moore to exit the vehicle. The female, Jennifer Ann Fritchy, snatched Moore’s keys out of the ignition, and Moore exited the vehicle. Moore testified that Ward and Fritchy took approximately $300 in cash from his pocket and a radio/CD player from his car. Ward and Fritchy were apprehended a short time after the robbery and were identified by Moore in a show-up.4 Fritchy pled guilty to robbery with a firearm and testified at Ward’s trial that Ward was her codefendant.
Ward was found guilty of robbery with the special finding that he possessed a firearm during the offense. Ward was also found guilty of aggravated assault with the finding that he possessed a firearm during the offense, and was found guilty of grand theft.
Ward contends that double jeopardy precludes him from being convicted for both robbery and grand theft because the property which formed the basis of both counts was the same and both counts arose out of the same criminal episode. The state concedes that the victim was the same for both offenses, and that the objects of the grand theft and robbery, U.S. currency and a radio/CD player, were the same. Additionally, the robbery and grand theft offenses were committed against Moore at the same location. We agree that it was improper to convict Ward of both offenses. See Elozar v. State, 825 So. 2d 490 (Fla. 5th DCA 2002) (holding that it was improper to convict the defendant of grand theft and robbery of the same property taken at the same time from the same person, as was conceded by the state); see also Oliver v. State, 842 So. 2d 259 (Fla. 5th DCA 2003) (double jeopardy barred dual convictions for robbery and petit theft that were based on the taking of a cash drawer containing cash from the clerk during the same incident).
We disagree, however, with Ward’s argument that the aggravated assault with a firearm offense should have been subsumed by the robbery with a firearm offense. In State v. Baker, 452 So. 2d 927, 928 (Fla.1984), the defendant was charged with armed robbery and also charged with aggravated assault because he pointed a shotgun at the robbery victim. Id. The Florida Supreme Court quashed the district court of appeal’s decision that the aggravated assault charge was a necessarily lesser included offense of armed robbery. Id. In finding that the trial court properly convicted the defendant for aggravated assault and armed robbery, the court stated:
In virtually every case of armed robbery, the deadly weapon carried by the perpetrator is the means by which he induces “force, violence, assault, or putting in fear,” one of the elements of any robbery, armed or unarmed. However, the statutory element which enhances punishment for armed robbery is not the use of the deadly weapon, but the mere fact that a deadly weapon was carried by the perpetrator. The victim may never even be aware that a robber is armed, so long as the perpetrator has the weapon in his possession during the offense. For double jeopardy purposes, this Court is bound to consider only the statutory elements of the offenses, not the allegations or proof in a particular case. Where an offense is not a necessarily lesser included offense, based on its statutory elements, the intent of the legislature clearly is to provide for separate convictions and punishments for the two offenses.
Id. at 929 (citations omitted). See also Taylor v. State, 608 So. 2d 804 (Fla.1992) (explaining the court did not expressly overrule Baker and reiterating that aggravated assault with a deadly weapon was not a lesser included offense of armed robbery); Owens v. State, 626 So. 2d 240 (Fla. 2d DCA 1993) (concluding that Taylor makes it clear that there is no double jeopardy prohibition against convictions for aggravated assault and armed robbery); Cave v. State, 613 So. 2d 454 (Fla.1993) (defendant could lawfully be tried and sentenced for armed robbery and aggravated battery and there was no double jeopardy because each crime contained an element not contained in the other).
We reverse the sentence and conviction for grand theft. Because vacating the conviction for grand theft does not affect Ward’s sentence, he need not be resen-tenced.
AFFIRMED in part; REVERSED in part.
PALMER and ORFINGER, JJ., concur. . § 812.13(2)(a), Fla. Stat. . § 784.021(l)(a), Fla. Stat. . § 812.014(2)(c), Fla. Stat. . Ward has not appealed the constitutionality of the identification.
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Bell v. State, 114 So. 3d 229 (Fla. 5th DCA 2013)…r included offense of armed robbery. Id. Since that clarification, the district courts have uniformly held that separate convictions for robbery with a firearm and aggravated assault with a firearm do not violate double jeopardy. See Ward v. State, 898 So. 2d 1152, 1158 (Fla. 5th DCA 2005); Delaney v. State, 673 So. 2d 541 (Fla. 3d DCA 1996); Owens v. State, 626 So. 2d 240, 242 (Fla. 2d DCA 1993), rev. denied, 634 So. 2d 626 (Fla.1994); Stone v. State, 616 So. 2d 643 (Fla. 4th DCA 1993). Bell failed to acknow…
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Gorday v. State, 907 So. 2d 640 (Fla. 3d DCA 2005)…theft was complete when the purse was stolen from the victim in one swift motion. Contrary to the State’s argument on appeal, the subsequent removal of the credit card from the victim’s purse was not an independent theft offense. See Ward v. State, 898 So. 2d 1152 (Fla. 5th DCA 2005)(double jeopardy prohibits grand theft and robbery conviction where property taken from victim at the same time); Elozar v. State, 825 So. 2d 490 (Fla. 5th DCA 2002)(grand theft and robbery convictions for same property taken at s…
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McKINNEY v. State, 24 So. 3d 682 (Fla. 5th DCA 2009)…ons for robbery with a weapon and grand theft arising from a single act could not stand under section 775.021(4)(b)2. because both offenses were aggravated forms of the same underlying offense, distinguished only by degree. See, e.g., Ward v. State, 898 So. 2d 1152 (Fla. 5th DCA 2005); Elozar v. State, 825 So. 2d 490 (Fla. 5th DCA 2002). The supreme court narrowed that holding in Gordon v. State, 780 So. 2d 17, 23 (Fla.2001), concluding that courts must discern the “primary evil” that a specific offense is int…
Authorities Cited
- State v. Baker, 452 So. 2d 927 (Fla. 1984)
- Taylor v. State, 608 So. 2d 804 (Fla. 1992)
- Foster v. State, 613 So. 2d 454 (Fla. 1993)
- Cave v. State, 613 So. 2d 454 (Fla. 1993)
- Elozar v. State, 825 So. 2d 490 (Fla. 5th DCA 2002)
- Owens v. State, 626 So. 2d 240 (Fla. 2d DCA 1993)
- Brittner v. State, 842 So. 2d 259 (Fla. 1st DCA 2003)