Blackmon v. State

• Citation: 121 So.3d 535
• Decision Date: 29 August 2013
• Docket Number: No. SC11–903.,SC11–903.
• Parties: David Devon BLACKMON, Petitioner, v. STATE Of Florida, Respondent.
• Court: Florida Supreme Court

121 So.3d 535

David Devon BLACKMON, Petitioner,

v.STATE Of Florida, Respondent.

No. SC11–903.

Supreme Court of Florida.

Aug. 29, 2013.

Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Tallahassee Bureau Chief, and Jay Kubica, Assistant Attorney General, Tallahassee, FL, for Respondent.

QUINCE, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011). The district court certified that its decision is in direct conflict with the decision of the Fourth District Court of Appeal in Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010). We have jurisdiction. Seeart. V, § 3(b)(4), Fla. Const.

This case involves section 812.025, Florida Statutes (2009), which precludes the trier of fact from finding a defendant guilty of both “theft and dealing in stolen property in connection with one scheme or course of conduct.” We are asked to decide the proper remedy on appeal for dual convictions rendered contrary to section 812.025, but where the defendant had failed to raise section 812.025 at trial. We hold that the district court below properly determined that petit theft, the lesser offense, must be vacated. Accordingly, we approve the First District's decision in Blackmon, and we disapprove the Fourth District's decision in Kiss. Additionally, we find that the trial court did not err in denying Blackmon's motion for a judgment of acquittal.

I. FACTS AND PROCEDURAL HISTORY

The following facts come from the First District Court of Appeal's opinion in Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011):

On November 23, 2009, employees at W.D. Rogers Mechanical Contractor (W.D. Rogers) cut, beveled, and marked approximately 14 steel bars. At 3:30 p.m., the shop closed. When the shop reopened at 7:30 a.m. the next morning, employees discovered that the steel bars were missing. Evidence existed of a burglary: the barbed wire on top of the 6–foot chain-link fence had been pushed down, the bushes below the fence were broken, footprints were on the sides of the metal racks, and the ground showed marks where the bars had been thrown over the fence and stuck in the ground. The steel bars were later found at a local scrap yard [Southern Recycling]. The scrap yard purchased the steel bars from Blackmon on November 24, 2009, at 8:02 a.m. The scrap yard paid Blackmon$61.80 for the bars.¹ Based on the markings on the bars, W.D. Rogers confirmed that the bars sold to the scrap yard were the same bars stolen from the shop.

The state charged Blackmon with burglary, petit theft, and dealing in stolen property. At trial, Blackmon testified that, on his way home from work in the early morning hours of November 24, he saw some steel bars lying on the side of the road; that the bars were still by the road later that morning when he walked his son to the bus stop at 6:00 a.m.; that he picked up the bars and took them to the scrap yard when they opened; and that, although he noticed the markings on the bars, he thought that the bars were simply junk. At the close of the evidence, Blackmon moved for a judgment of acquittal, arguing that the state did not present evidence to rebut this explanation for his possession of the steel bars. The trial court denied the motion.

The trial court did not instruct the jury that it could not return a guilty verdict for both theft and dealing in stolen property pursuant to section 812.025, Florida Statutes (2009), and Blackmon did not request such an instruction. The jury found Blackmon guilty of both petit theft and dealing in stolen property, but acquitted him of burglary. The trial court thereafter adjudicated Blackmon guilty of both offenses. The trial court also found Blackmon in violation of his probation based on the new law offenses of burglary and theft.

The trial court sentenced Blackmon to time served on the petit theft count and five years in prison on the dealing in stolen property count. Blackmon was also given a concurrent five-year sentence for the violation of probation. The prison sentence was based on a Criminal Punishment Code Scoresheet that scored petit theft as an additional offense (0.2 points). The lowest permissible prison sentence under the scoresheet was 28.35 months.

Id. at 344–45. On appeal to the First District, Blackmon, citing Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010), contended that he was entitled to a new trial because he was convicted of both petit theft and dealing in stolen property in violation of section 812.025. Id. at 345–46.

Section 812.025 provides as follows:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

§ 812.025, Fla. Stat. (2009) (emphasis added). The State conceded on appeal that the dual convictions amounted to fundamental error, but asserted that the petit theft conviction, the lesser of the two offenses, should be vacated. Blackmon, 58 So.3d at 345.

Even though Blackmon failed to object to the dual convictions at trial, the district court below maintained that he was permitted to challenge the convictions on appeal. Id. The district court below discussed the Fourth District's decision in Kiss.Id. at 346. In Kiss, the trial court failed to instruct the jury on section 812.025, and the jury ultimately convicted the defendant in violation of said statute. 42 So.3d at 811. The Fourth District in Kiss held that the defendant was entitled to a new trial, reasoning that the “failure to instruct the jury on section 812.025 puts the defendant at a disadvantage.” Id. at 813.

Although the district court below found the reasoning in Kiss to have “some attraction” because section 812.025 “imposes an obligation on the trier of fact (here, the jury), not the trial court,” it held that vacating the conviction for the lesser offense was the proper remedy. Blackmon, 58 So.3d at 346–47. The district court observed that such remedy “better respects the jury's determination that the State met its burden to prove the greater offense and also avoids the need to speculate what verdict the jury might have returned had it been required to choose between the greater and lesser offenses.” Id. at 347. Further, the district court explained that such remedy was consistent with its previous decisions as well as with our decision in Hall v. State, 826 So.2d 268 (Fla.2002):

Notably, the supreme court [in Hall ] did not construe section 812.025 to preclude a defendant from entering pleas to both theft and dealing with stolen property; rather, the court construed the statute to prohibit the trial court from adjudicating a defendant guilty of both offenses. As a result, the court remanded not to allow the defendant to withdraw his pleas, but rather with directions that either the grand theft count or the dealing in stolen property count be reversed and that the defendant be resentenced on the remaining count.

58 So.3d at 347. Accordingly, the district court reversed Blackmon's conviction for petit theft and remanded with directions that the trial court vacate that conviction. Id. at 348. Moreover the district court certified conflict with Kiss as to the “proper remedy when, contrary to section 812.025, the defendant is convicted of both theft and dealing in stolen property.” Id.²

II. ANALYSIS

The question before this Court involves the interpretation of section 812.025, Fla. Stat. (2009). Blackmon contends that section 812.025 and our decision in Hall required the trial court below to instruct the jury that it could return a guilty verdict on either the petit theft or the dealing in stolen property count, and that because the jury was allowed to return guilty verdicts on both offenses, a new trial is required. Conversely, the State asserts that the only remedy which serves the dual purposes of respecting the jury's verdict and complying with the statutory prohibition on dual convictions is to vacate the lesser of the two convictions. Questions of statutory interpretation are subject to de novo review. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007).

We begin our analysis by discussing the history and purpose of the Florida Anti–Fencing Act which was enacted in 1977 and includes section 812.025, and the theft and dealing in stolen property statutes. See ch. 77–342, Laws of Florida; §§ 812.012–812.037, Fla. Stat. (1977). “The legislative history of chapter 77–342 reveals that the Florida Anti–Fencing Act was adapted from a model theft and fencingact developed by G. Robert Blakey and endorsed by the National Association of Attorneys General (NAAG).” Goddard v. State, 458 So.2d 230, 233 & n. 2 (Fla.1984) (citing G. Robert Blakey & Michael Goldsmith, Criminal Redistribution of Stolen Property: The Need for Law Reform, 74 Mich. L.Rev. 1511 (1976)).

“The goods obtained by burglarizing both residential and commercial establishments are commonly passed on to fences.” Blakey & Goldsmith, 74 Mich. L.Rev. at 1525 n. 78. A fence is a person who “purchase[s] stolen goods from thieves and resell[s] them at retail and wholesale levels.” Id. at 1513–14. “Fencing systems play a vital role in theft activity because most thieves are unable to deal directly with the consuming public and must therefore operate through middlemen who have the financial resources to purchase stolen goods and the contacts to help in their redistribution.” Id. at 1514–15. “[O]ne of the model act's primary purposes is to facilitate the prosecution and conviction of ‘white collar’ fences who often escape punishment because they never come into contact with stolen goods,” according to...