58 So. 3d 343
Fla. Dist. Ct. App.2011Background
- Blackmon was convicted of petit theft and dealing in stolen property arising from the same stolen steel bars and conduct.
- The bars were taken from WD.Rogers, found at a scrap yard, and purchased by Blackmon who claimed they were junk.
- The jury acquitted Blackmon of burglary; the trial court adjudicated him guilty of both petit theft and dealing in stolen property.
- The score sheet caused a five-year prison sentence on the dealing in stolen property count, with time served on petit theft and a concurrent probation violation sentence.
- The state concedes a fundamental error: conviction of both theft and dealing in stolen property under 812.025, but proposes vacating the lesser offense as the remedy.
- The court adopts Alexander and Hall while rejecting Kiss, vacating the petit theft conviction and remanding for appropriate relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dual convictions violated 812.025 | Blackmon argues for a new trial as proper remedy. | State contends the lesser offense should be vacated. | Lesser offense vacated; remand with directions (no new trial). |
Key Cases Cited
- Hall v. State, 826 So.2d 268 (Fla.2002) (statutory framework for determining which offense may be convicted under 812.025)
- Kiss v. State, 42 So.3d 810 (Fla.4th DCA 2010) (remand for new trial when jury not instructed under 812.025)
- Alexander v. State, 470 So.2d 856 (Fla.1st DCA 1985) (remedy: vacate lesser offense; preserve jury’s greater-offense finding)
- Ridley v. State, 407 So.2d 1000 (Fla.5th DCA 1981) (remedy for failure to instruct on 812.025; vacate lesser conviction)
- Aversano v. State, 966 So.2d 493 (Fla.4th DCA 2007) (discusses 812.025 implications and relief from dual counts)