Lewis v. State

Sep 13, 1995
No. 91-4131
Versions:667 So. 2d 292
1995 Fla. App. LEXIS 9642
1995 WL 539046

Lead Opinion

BENTON, Judge.

Anthоny Lewis appeals his conviction for petit theft. He contends in his initial supplemental brief thаt this count of his three-count judgment and the corresponding sentence must be set aside. On the othеr counts, he was convicted and sentenced below for forgery and for uttering a forgery. The convictions for petit theft and for uttering a forgery were both based on the single act of attеmpting to cash a forged check. We reverse the petit theft conviction on double jеopardy grounds.

This case presents the “unusual example of two statutory offenses which arе not the ‘same’ for Blockburger purposes, but which *293may nevertheless be barred from double conviction because of thе historical development of the criminal code with regard to thefts.” Thompson v. State, 585 So.2d 492, 494 (Fla. 5th DCA 1991), approved, 607 So.2d 422 (Fla.1992). The state charged and proved a single attempt by appellant to obtain property (money) of a single victim by cashing a forged check. Lewis was prosecuted under section 831.02, Florida Statutes (1993), which prohibits knowingly uttering a forgery with ‍‌‌‌​‌‌‌‌​​​​‌‌​‌​‌​​‌​‌​​‌‌​‌​‌‌‌​​‌‌‌​‌‌​​​​​​​‍the intent to defraud, and under the general theft statute, section 812.014, Florida Statutes (1993), which prohibits knowingly endeavoring to obtain the property of another by any means. The thеft statute treats attempted theft the same as the completed crime. See McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980).

Section 775.021(4)(b) bars duаl convictions under these statutes for the same act, in these circumstances. “The specific theft crimes have become ‘degrees’ of the generally defined theft crime in Chaptеr 812.” Thompson, 585 So.2d at 494. This ease is distinguishable from Henderson v. State, 572 So.2d 972 (Fla. 3d DCA 1990), approved, 583 So.2d 1030 (Fla.1991), in that Lewis did not actually obtain any funds. Unlike the theft convictions in Henderson, each of which involved “a separate act of theft,” id. at 974, appellant’s (attempted) theft conviction rests on no act other than uttering the forged instrument.

Our conclusion in this easе is also consonant ‍‌‌‌​‌‌‌‌​​​​‌‌​‌​‌​​‌​‌​​‌‌​‌​‌‌‌​​‌‌‌​‌‌​​​​​​​‍with the view the supreme court expressed in Sirmons v. State, 634 So.2d 153 (Fla.1994), which goes beyond the Blockbur-ger “elements” test of double jeopardy and forbids multiple prosecutions for a single act, even if it is linguistically possible to express two or more offenses so that each contains an element the other laсks. See also Watson v. State, 655 So.2d 1250 (Fla. 1st DCA 1995); McConn v. State, 648 So.2d 837 (Fla. 2d DCA 1995); Blanchard v. State, 634 So.2d 1118 (Fla. 2d DCA 1994).

Appellant’s conviction for forgery under section 831.01, Florida Statutes (1993), is supported by proof of the separate act of forging the payor’s name and is therefore affirmed, as is thе conviction for uttering a forgery. Appellant’s conviction for petit theft is reversed.

BAEFIELD and WOLF, JJ., concur.

WOLF, J., concurs with opinion, in which BARFIELD, J., concurs.





Concurrence Opinion

WOLF, Judge,

concurring.

I join in Judge Benton’s opinion because appellant cannot be convicted for both uttering a forged instrument and petit theft arising out of one criminal transаction. ‍‌‌‌​‌‌‌‌​​​​‌‌​‌​‌​​‌​‌​​‌‌​‌​‌‌‌​​‌‌‌​‌‌​​​​​​​‍I concur because (1) if one looks only at the statutory elements of the crime аs we are mandated to do by section 775.021(4), Florida Statutes (1993), and Brown v. State, 617 So.2d 744 (Fla. 1st DCA 1993), affirmed, 633 So.2d 1059 (Fla.1994), then a person cannot commit the offense of uttering a forged instrument pursuant to section 831.02, Florida Statutes (1993), without also cоmmitting a theft pursuant to section 812.014, Florida Statutes (1993);1 (2) if we have a right to look at the facts of this case in determining whether a separate crime has occurred, then Henderson, supra, is inapplicable sinсe no money exchanged hands in the instant case; and (3) this case is indistinguishable from Watson v. State, 655 So.2d 1250 (Fla. 1st DCA 1995), where this cоurt found that a party could not be convicted for both theft and ‍‌‌‌​‌‌‌‌​​​​‌‌​‌​‌​​‌​‌​​‌‌​‌​‌‌‌​​‌‌‌​‌‌​​​​​​​‍another crime which constitutеd nothing more than the manner in which the theft was committed.

*294I also write to note the amount of time and judicial labor which has been spent on a case where our decision has no practical effect. This case originally came to this court on an Anders brief. Appellant is a habituаl offender who has been sentenced to concurrent 10-year terms on counts I and II. His guideline sеoresheet indicated a recommended and permitted sentence of life. The effеct of our decision is to overturn a 60-day concurrent sentence for a second-degree misdemeanor, a sentence appellant had already served at the time of sеntencing. I wonder whether both justice and effective use of judicial labor would have been bеtter served by a simple per curiam affirmance.

Notes

. Section 775.021(4) mandates that the determination of whether two separate crimes have occurred should be made "without regard to the accusatory pleading or the proof adduced at trial.” This appears to be a legislative mandate that the courts of this state ignore. In Henderson v. State, 572 So.2d 972 (Fla. 3d DCA 1990), approved, 583 So.2d 1030 (Fla.1991), the court determined that a person may be convicted of both uttering a forged instrument and theft because the crime of uttering was completed prior to the money being exchanged and the theft was completed upon receipt of ‍‌‌‌​‌‌‌‌​​​​‌‌​‌​‌​​‌​‌​​‌‌​‌​‌‌‌​​‌‌‌​‌‌​​​​​​​‍the money; therefore, separate criminal acts had occurred. This opinion ignores the language in § 812.014, Fla.Stat. (1993) (also the same language as in the 1985 statute cited by the court), that one commits a completed theft upon endeavoring to obtain the property of another.