Henry v. State
64 So. 3d 181
Fla. Dist. Ct. App.2011Background
- Stephen Henry was convicted of scheme to defraud, grand theft, and fraudulent use of personal identification information, then sentenced as an habitual felony offender to three years in prison followed by three years' probation.
- Two women stole Judy Jones's credit card at a Lakeland mall; Henry and one woman used the card at CVS starting at 3 a.m. to purchase items and gift cards.
- Henry and the same woman left; three hours later Henry returned alone and attempted another gift-card purchase with the stolen card, which the clerk refused due to the cardholder name not matching Henry.
- Henry claimed the card belonged to a woman or his aunt outside the store; after failed attempts to procure the aunt inside, he left.
- Henry was identified on surveillance video, arrested, and charged with scheme to defraud CVS, grand theft, and criminal use of personal identification information; the jury found him guilty on all counts.
- On appeal, the court affirmed the fraudulent-use conviction but vacated the grand-theft conviction and remanded for resentencing on a corrected scoresheet, holding double jeopardy barred the two offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does double jeopardy bar Henry's concurrent convictions for scheme to defraud and grand theft? | Henry argues dual convictions based on the same conduct should be vacated. | State contends the two offenses are distinct under the charging and evidence. | Yes; grand theft must be vacated and remanded. |
Key Cases Cited
- Pizza v. State, 945 So.2d 1203 (Fla. 2006) (double jeopardy bars grand theft where conduct also constitutes organized fraud)
- State v. Barton, 523 So.2d 152 (Fla. 1988) (lesser offense doctrine in double jeopardy analysis)
- State v. Florida, 894 So.2d 941 (Fla. 2005) (elements-based framework for determining lesser included offenses)
- Raines v. State, 19 So.3d 331 (Fla. 2d DCA 2009) (double jeopardy analysis aligning with Pizzo/Rizzo approach)
- Safrany v. State, 895 So.2d 1145 (Fla. 2d DCA 2005) (fundamental-error review for double jeopardy claims raised on appeal)
- Pizzo v. State, 945 So.2d 1203 (Fla. 2006) (organized fraud includes all elements of grand theft; grand theft is lesser.)