BRIAN D. KABLITZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brian Kablitz appeals his convictions for dealing in stolen property and petit theft, arguing the trial court committed fundamental error by failing to instruct the jury that he could be convicted of one offense but not both under Florida Statute section 812.025. The Fourth District Court of Appeal reversed and remanded for a new trial, finding the omitted instruction constituted fundamental error.
The trial court's failure to instruct the jury pursuant to section 812.025 that a defendant cannot be convicted of both theft and dealing in stolen property constitutes fundamental error. Therefore, Kablitz's conviction must be reversed and remanded for a new trial.
[1] The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subs…
[2] A trial court's failure to instruct the jury that a defendant may be convicted of either theft or dealing in stolen property, but not both, constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“a trial court's failure to instruct the jury pursuant to that section constitutes fundamental error”
Establishes the legal standard that omitting the section 812.025 instruction is fundamental error
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Join FLexlaw to unlock all legal intelligenceA jury found Kablitz guilty of dealing in stolen property, false verification of ownership, and the lesser included offense of petit theft. The trial …
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In this new appeal, Brian Kablitz raises four issues, all but one of which we previously addressed on direct appeal. Kablitz v. State, 979 So.2d 969 (Fla. 4th DCA 2008) (hereinafter “Kablitz I ”).
A jury found Kablitz guilty of dealing in stolen property, false verification of ownership, and a lesser included offense of petit theft. Id. at 971. The trial court did not sentence him for the petit theft because of *970his 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. Id. at 155-56. Kablitz was permitted this new appeal.
In Kablitz I, Kablitz argued, among other things, that the trial court reversibly erred by denying his motion to sever offenses, denying his motion for new trial based on newly discovered evidence, and denying his request for a jury instruction on theft as a lesser included offense of dealing in stolen property. 979 So.2d at 971-72. In that appeal, we addressed those issues, the last without comment. Id. In this appeal, Kablitz raises these same issues, which we need not readdress. See Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001) (“The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.”); see also Greene v. Massey, 384 So.2d 24, 28 (Fla.1980) (“All points of law which have been adjudicated become the law of the case and are, except in exceptional circumstances, no longer open for discussion or consideration in subsequent proceedings in the case.”).
Not previously raised, Kablitz asserts that the trial court’s failure to instruct the jury — pursuant to section 812.025 — that he could be convicted of dealing in stolen property or theft, but not both, constitutes fundamental error. We addressed the very same issue in Kiss v. State, 42 So.3d 810, 811 (Fla. 4th DCA 2010), concluding that a trial court’s failure to instruct the jury pursuant to that section constitutes fundamental error. We reach the same conclusion in this ease and accordingly reverse for a new trial. In so holding, we certify conflict with Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011), and Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011), regarding the proper remedy when a defendant is convicted of both theft and dealing in stolen property.
Affirmed in Part; Reversed in Part and Remanded for New Trial.
WARNER and GERBER, JJ., concur.
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Citator
Cited By
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State v. Kablitz, 136 So. 3d 1122 (Fla. 2014)…QUINCE, J. We have for review Kablitz v. State, 134 So. 3d 969, 36 Fla. L. Weekly D2358 (Fla. 4th DCA Oct. 26, 2011), in which the Fourth District Court of Appeal found it fundamental error when the trial court failed to instruct the jury that the defendant could not be convicted of both theft and dealing in st…
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Kablitz v. State, 138 So. 3d 602 (Fla. 4th DCA 2014)
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Kablitz v. State, 190 So. 3d 112 (Fla. 4th DCA 2015)…jury was not -instructed that it-could convict of theft or dealing in stolen property, but not both. Kablitz v. State, 13 So. 3d 156 (Fla. 4th DCA 2009). In the new appeal, we agreed with appellate counsel and ordered a new trial. Kablitz v. State, 134 So. 3d 969, 970 (Fla. 4th DCA 2011) (certifying . conflict with Blackmon v. State, 58 So. 3d 343 (Fla. 1st DCA 2011), which held that the proper remedy was to remand to vacate the lesser offense). The Florida Supreme Court disagreed with this Court’s holding…
Authorities Cited
- Fla. Dep't OF Transp. v. Juliano, 801 So. 2d 101 (Fla. 2001)
- Fla. Prestressed Concrete Ass'n, Inc. v. Fla. Pub. Serv. Comm'n, 384 So. 2d 24 (Fla. 1980)
- Greene v. Massey, 384 So. 2d 24 (Fla. 1980)
- Kiss v. State, 42 So. 3d 810 (Fla. 4th DCA 2010)
- Williams v. State, 66 So. 3d 360 (Fla. 2d DCA 2011)
- Kablitz v. State, 979 So. 2d 969 (Fla. 4th DCA 2008)
- State v. Huby, 58 So. 3d 343 (Fla. 4th DCA 2011)
- Blackmon v. State, 58 So. 3d 343 (Fla. 1st DCA 2011)
- Kablitz v. State, 13 So. 3d 155 (Fla. 4th DCA 2009)