JOSHUA ALLEN POOLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the failure to instruct the jury on section 812.025 does not constitute fundamental error warranting a new trial.
Joshua Allen Poole was convicted of dealing in stolen property and petit theft, but the trial court dismissed the theft charge. Poole argued the trial…
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Joshua Allen Poole was charged with burglary, dealing in stolen property, and grand theft. At trial, the court did not instruct the jury that it could not find Poole guilty of both grand theft and dealing in stolen property under section 812.025, Florida Statutes (2009), and Poole did not request such an instruction. The jury convicted Poole of both dealing in stolen property and the lesser-included offense of petit theft, but acquitted him of *432burglary. Thereafter, the trial court dismissed the theft charge and sentenced Poole only for dealing in stolen property.
On appeal, Poole argues that the trial court fundamentally erred by failing to instruct the jury that under section 812.025, it could not return a guilty verdict for both theft and dealing in stolen property and that he is entitled to a new trial pursuant to Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010). In Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011), this court held that the court’s failure to instruct the jury on section 812.025 does not constitute fundamental error warranting a new trial. Accordingly, we affirm Poole’s judgment and sentence and as in Williams, we certify conflict with Kiss and certify the following questions to the Florida Supreme Court:
I. MUST THE TRIAL COURT INSTRUCT THE JURY TO PERFORM THE SELECTION PROCESS DESCRIBED IN SECTION 812.025 OF THE FLORIDA STATUTES?
II. IF SO, MUST THE APPELLATE COURT ORDER A NEW TRIAL ON BOTH OFFENSES IF THE TRIAL COURT FAILS TO GIVE THE INSTRUCTION?
III. IF THE APPELLATE COURT IS NOT REQUIRED TO MANDATE A NEW TRIAL, MUST IT REQUIRE THE TRIAL COURT TO SELECT THE GREATER OFFENSE OR THE LESSER OFFENSE WHEN THE TWO OFFENSES ARE OFFENSES OF DIFFERENT DEGREES OR OF DIFFERENT SEVERITY RANKING?
KELLY, KHOUZAM, and BLACK, JJ., Concur.
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Citator
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Blackmon v. State, 121 So. 3d 535 (Fla. 2013)…fenses of different degrees or of different severity ranking? Id. at 365; see also Wilkins v. State, 78 So. 3d 18, 19 (Fla. 2d DCA 2011) (certifying conflict with Kiss, and certifying the same three questions as it did in Williams); Poole v. State, 67 So. 3d 431, 432 (Fla. 2d DCA 2011) (same). . Blackmon’s dealing in stolen property conviction was a second-degree felony and his petit theft conviction was a second-degree misdemeanor. . Because Blackmon took the steel bars from the side of the road and then…
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Wilkins v. State, 78 So. 3d 18 (Fla. 2d DCA 2011)
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Anucinski v. State, 90 So. 3d 879 (Fla. 2d DCA 2012)…ost-Hall trial cases have been directed to simply vacate the lesser of the two convictions pursuant to section 812.025. See, e.g., Wilson v. State, 884 So. 2d at 77; Blackmon v. State, 58 So. 3d 343, 347 (Fla. 1st DCA 2011); see also Poole v. State, 67 So. 3d 431 (Fla. 2d DCA 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); Si…
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
- Kiss v. State, 42 So. 3d 810 (Fla. 4th DCA 2010)
- Williams v. State, 66 So. 3d 360 (Fla. 2d DCA 2011)