121 So. 3d 535
Fla.2013Background
- On Nov. 23–24, 2009 Blackmon acquired steel bars that had been stolen from W.D. Rogers and sold them to a local scrap yard; he was charged with burglary, petit theft, and dealing in stolen property.
- The jury convicted Blackmon of petit theft and dealing in stolen property (but acquitted him of burglary); the trial court adjudicated guilt on both convictions and sentenced on the dealing count.
- Section 812.025, Fla. Stat., allows charging both theft and dealing in stolen property for one scheme but provides that the trier of fact may convict of one or the other, but not both.
- Blackmon did not request a § 812.025 instruction at trial and raised the statutory conflict on appeal; the State conceded error but argued the lesser conviction should be vacated.
- The First District vacated the petit theft conviction and affirmed the dealing-in-stolen-property conviction, certifying conflict with the Fourth District’s decision in Kiss v. State.
- The Florida Supreme Court approved the First District: it held that when dual convictions violate § 812.025 but the defendant failed to preserve the issue, the proper remedy is to vacate the lesser offense (not grant a new trial), and it rejected the Fourth District’s contrary rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 812.025 requires a jury instruction and, if omitted, whether a new trial is required when jury convicts of both theft and dealing in stolen property | Blackmon: omission of § 812.025 instruction and dual convictions require a new trial (per Kiss) | State: dual convictions are fundamental error but remedy is vacating the lesser conviction | Court: omission was error but not fundamental; vacate lesser offense (petit theft) and affirm greater (dealing in stolen property) |
| Whether § 812.025 bars adjudication of guilt on both counts where defendant pleaded/no-contest (scope of statute) | N/A in Blackmon (trial was to jury) | N/A | Cited Hall: § 812.025 applies to adjudications on pleas as well as jury verdicts; judge must choose one when necessary |
| Whether evidence was sufficient to deny judgment of acquittal on dealing in stolen property | Blackmon: reasonable hypothesis of innocence (found bars on road) not rebutted | State: evidence (possession shortly after theft, markings, sale, prior convictions) rebutted innocence inference | Court: substantial competent evidence supported conviction for dealing in stolen property; judgment of acquittal properly denied |
| Proper sentencing/resentencing when lesser conviction vacated affects scoresheet | Blackmon: vacating petit theft may alter scoresheet and sentence | State: correction would not materially change sentence imposed | Court: vacating the petit theft conviction did not require resentencing; corrected scoresheet would not have changed five-year sentence |
Key Cases Cited
- Hall v. State, 826 So.2d 268 (Fla. 2002) (interpreting § 812.025 and directing reversal of one of dual convictions entered in violation of the statute)
- Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010) (held omission of § 812.025 instruction was fundamental and required a new trial)
- Goddard v. State, 458 So.2d 230 (Fla. 1984) (discussing legislative history and purpose of Florida Anti‑Fencing Act)
- Ridley v. State, 407 So.2d 1000 (Fla. 5th DCA 1981) (reversed lesser conviction when jury returned dual verdicts contrary to statute)
- Brown v. State, 464 So.2d 193 (Fla. 1st DCA 1985) (held § 812.025 limited to jury verdicts and not applicable to plea adjudications)
- Pizzo v. State, 945 So.2d 1203 (Fla. 2006) (analogous instruction on remedy: when dual convictions are impermissible, reverse the lesser offense)