66 So. 3d 360
Fla. Dist. Ct. App.2011Background
- Williams burglarized an unoccupied Tampa dwelling on Aug 8, 2008, stealing items including digital gaming systems, DVDs, and a camera.
- Fingerprints at the scene matched Williams; pawn shop records showed a digital gaming system pawned on Aug 9, 2008, linked to Williams.
- Expert testimony connected Williams’ trial fingerprints to both the burglary scene and the pawned item.
- The State charged four counts: burglary of an unoccupied dwelling, third‑degree grand theft, dealing in stolen property, and providing false information to a pawnbroker.
- At trial, Williams requested a section 812.025 instruction; the jury returned guilty verdicts on all four counts; the court later dismissed the grand theft charge as the lesser offense but sentenced Williams on burglary (15 years), dealing in stolen property (15 years, concurrent), and false information to a pawnbroker (5 years).
- The appellate court concluded section 812.025 is unenforceable to the extent it prescribes how a jury should select between two related offenses and refused to order a new trial; it certified questions of public importance and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must the trial court give 812.025 jury guidance? | Williams argues the statute requires a specific instruction. | State contends no adequate instruction exists and statutory policy is unclear. | No mandatory instructed guidance; statute unenforceable for jury selection. |
| Is a new trial required if the instruction is not given? | Kiss requires new trial upon error in instruction. | Remedy is vacating the lesser conviction, not new trial. | New trial not required; remedy is vacating lesser offense if appropriate. |
| Should the court have chosen between offenses or instructed on penalties? | Williams seeks a choice between greater/lesser offense. | Legislature provided no criteria to guide selection; penalty instruction prohibited by rule 3.390(a). | No clear criteria; preferred practice is not to instruct on selection; no new trial. |
Key Cases Cited
- Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010) (conflicting approach on dual convictions for theft and dealing in stolen property; remedy typically vacate lesser conviction)
- Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011) (disagreeing with Kiss; allows vacating lesser conviction rather than new trial)
- Wilson v. State, 884 So.2d 74 (Fla. 2d DCA 2004) (trial court error; vacate lesser offense; no new trial)
- Rife v. State, 446 So.2d 1157 (Fla. 2d DCA 1984) (early articulation of double jeopardy approach in this context)
- Victory v. State, 422 So.2d 67 (Fla. 2d DCA 1982) (remedial vacatur of lesser offense in dual convictions)
- Anderson v. State, 2 So.3d 303 (Fla. 4th DCA 2008) ( Fourth District’s approach to vacating lesser offense in similar situations)
- Hall v. State, 826 So.2d 268 (Fla.2002) (concerning conviction of only one offense in a dual‑count scenario)