BRIAN KABLITZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Kablitz was convicted of both petit theft and dealing in stolen property, but Florida law prohibits conviction on both charges simultaneously. The appellate court granted his petition for a new appeal based on ineffective assistance of appellate counsel, finding that his appellate lawyer failed to raise the trial court's fundamental error in omitting a required jury instruction.
Appellate counsel was constitutionally ineffective because the omission of the required jury instruction constitutes fundamental error under Aversano v. State, and failing to raise this error on direct appeal necessarily rendered the appellate representation constitutionally deficient.
[1] A jury may not return a guilty verdict on both theft and dealing in stolen property.
[2] Failure to instruct a jury that it must choose between a verdict for theft and a verdict for dealing in stolen property constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“although defendant may be charged in single information with both theft and dealing in stolen property, trier of fact may return a guilty verdict on one or the other, but not both, of the counts”
Establishes the statutory prohibition against conviction on both theft and dealing in stolen property charges
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Join FLexlaw to unlock all legal intelligenceKablitz was tried for grand theft and dealing in stolen property. The trial court failed to instruct the jury that it could convict on only one of the…
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In defendant’s trial for grand theft and dealing in stolen property, his trial counsel failed to request a specific jury instruction to the effect that he could not be guilty of both charges, that the jury would have to choose only one of them if any at all.1 The jury convicted him of both the lesser included offense of petit theft and dealing in stolen property. On his direct appeal, his lawyer failed to raise the issue as fundamental error, and his convictions were affirmed. We now have his petition for a new appeal based on ineffective assistance of appellate counsel.2 We grant the petition.
In Aversano v. State, 966 So.2d 493 (Fla. 4th DCA 2007), we held that this same omission constitutes fundamental error: *156966 So.2d at 496. It necessarily follows that if he was denied the same “fundamental” linchpin on his direct appeal, his appellate counsel was indubitably constitutionally ineffective. See Barber v. State, 918 So.2d 1013 (Fla. 2d DCA 2006) (appellate counsel was ineffective in not raising issue that convictions for both theft and dealing in stolen property were prohibited by § 812.025).
*155“Because the trial court did not instruct the jury on its obligation ... to ‘determine whether the defendant is a common thief who steals property ... or whether the defendant traffics ... in stolen property,’ the court committed fundamental error. That determination by the jury is the ‘linchpin’ element that must be decided by the trier of fact when both theft and dealing in stolen property are charged.” [c.o.]
*156 Petition granted.
FARMER, STEVENSON and LEVINE, JJ., concur.
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Citator
Cited By
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Kablitz v. State, 134 So. 3d 969 (Fla. 4th DCA 2011)…] his conviction for dealing in stolen property. Id. On direct appeal, we affirmed his conviction and sentence. Id. at 970. Following his direct appeal, Kablitz filed a petition alleging ineffective assistance of appellate counsel. Kablitz v. State, 13 So. 3d 155, 155 (Fla. 4th DCA 2009). We granted his petition, concluding appellate counsel was ineffective for not raising as fundamental error that convictions for both theft and dealing in stolen property were prohibited by section 812.025, Florida Statutes.…
Authorities Cited
- Hall v. State, 826 So. 2d 268 (Fla. 2002)
- Aversano v. State, 966 So. 2d 493 (Fla. 4th DCA 2007)
- Barber v. State, 918 So. 2d 1013 (Fla. 2d DCA 2006)