Cherry v. State, 90-01966
| Decision Date | 18 December 1991 |
| Docket Number | No. 90-01966,90-01966 |
| Citation | 592 So.2d 292 |
| Parties | 17 Fla. L. Weekly D61 Kenneth Lynn CHERRY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Robert D. Rosen, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Dale E. Tarpley, Asst. Atty. Gen., Tampa, for appellee.
The defendant, Kenneth Lynn Cherry, challenges his convictions, after jury trial, and his sentences for one count of Racketeer Influenced and Corrupt Organization (RICO) Act, and thirteen counts of grand theft and organized fraud offenses. We find merit only in his argument that his convictions for certain organized fraud and grand theft offenses violate the double jeopardy clauses of the federal and state constitutions.
The evidence at trial disclosed that the defendant, acting as a licensed agent, submitted insurance applications to premium finance companies on behalf of an individual and some existent and nonexistent businesses. The defendant then obtained money when funds advanced to him were either partially or never forwarded to the insurance companies.
The court adjudicated the defendant guilty and sentenced him as follows:
One Count of Racketeering 13 years' imprisonment
Sec. 895.03(3), Fla.Stat. (1987) followed by 7 years'
probation
Six Counts of Second Degree Grand Theft 13 years' incarceration
Sec. 812.014(2)(b), Fla.Stat. (1987) followed by 2 years'
probation on each count
Two Counts of Third Degree Grand Theft 5 years' imprisonment
Sec. 812.014(2)(c), Fla.Stat. (1987) on each count
Three Counts of Organized Fraud 13 years' incarceration
Sec. 817.034(4)(a)1, Fla.Stat. (1987) followed by 7 years'
probation on each count
concurrent with each
other
One Count of Organized Fraud 13 years' imprisonment,
Sec. 817.034(4)(a)2, Fla.Stat. (1987) followed by 2 years'
probation
One Count of Organized Fraud 5 years' imprisonment
Sec. 817.034(4)(a)3, Fla.Stat. (1987)
----------
The court ordered all sentences to run concurrently.
We agree with the defendant's argument that his convictions for the five organized fraud and five grand theft counts that are based on common allegations violate his constitutional right not to be placed twice in jeopardy for the same offense. U.S. Const. art. V; Art. 1, Sec. 9, Fla. Const. All the elements of the crime of theft are included within the offense of organized fraud. Consequently, for double jeopardy purposes, this effectively makes the two crimes the "same offense."
The legislature may create multiple offenses for crimes arising out of the same act or transaction. If in doing so, the statutes clearly provide for separate offenses, no double jeopardy question arises when a person is convicted of more than one of those offenses based on the same act. See, e.g., Carawan v. State, 515 So.2d 161 (Fla.1987). However, if the statutes do not expressly proclaim an intent to create separate offenses, the "Rules of Construction" found in section 775.021, Florida Statutes (1989), must be applied. 1 Section 775.021(4) provides:
(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
In applying subsection (4), "courts look only to the statutory elements of each offense and not to the actual evidence to be presented at trial or the facts as alleged in a particular information." State v. Carpenter, 417 So.2d 986, 988 (Fla.1982). Accordingly, we must examine whether theft and organized fraud each contain an element the other does not.
The Fifth District has addressed this precise issue in Donovan v. State, 572 So.2d 522, 526 (Fla. 5th DCA 1990). There, the court held that all of the elements of theft are included in the elements of organized fraud and, therefore, one cannot be convicted of both based on the same act without a double jeopardy violation.
Here, it appears from the state's information that:
Count 11 Second Degree Grand Theft, and
Count 12 Third Degree Grand Theft
are based on the same transactions that form the basis of the charges in:
Section 817.034(4)(a), Florida Statutes (1987), reads:
Any person who engages in a scheme to defraud and obtains property thereby is guilty of organized fraud....
Section 817.034(3)(d) defines "scheme to defraud" as "a systematic, ongoing course of conduct with the intent to defraud one or more persons, or with the intent to obtain property from one or more persons by false or fraudulent pretenses, representations, or promises or willful misrepresentation of a future act." Id. Section 817.034(3)(c) defines "property" as "anything of value," and section 817.034(3)(b) defines "obtain" as to temporarily or permanently deprive "any person of the right to property or a benefit therefrom, or to appropriate the property to one's own use or to the use of any other person not entitled thereto." Id.
Thus, the elements of organized fraud are:
(1) engaging in a systematic, ongoing course of conduct
(2) with the intent to:
(5) resulting in temporarily or permanently depriving any person of the right to property or a benefit therefrom, or appropriating the property to one's own use or to the use of another person not entitled thereto.
As to the elements of theft, section 812.014, Florida Statutes (1987), reads:
(1) A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or...
To continue reading
Request your trial
-
Anderson v. State
...each crime rather than the individual factual situation presented in each case. § 775.021(4)(b)3., Fla.Stat. (1993); Cherry v. State, 592 So.2d 292, 294 (Fla. 2d DCA 1991) (stating that "courts look only to the statutory elements of each offense and not to the actual evidence to be presente......
-
Pizzo v. State
...grand theft that are based on common allegations violate the constitutional prohibition against double jeopardy. Cherry v. State, 592 So.2d 292, 294-95 (Fla. 2d DCA 1991); Donovan v. State, 572 So.2d 522, 525 (Fla. 5th DCA 1990). Although Mr. Pizzo did not preserve this issue for review, a ......
-
Saddler v. State, 1D04-2602.
...offense of organized fraud," effectively making the two crimes, for purposes of double jeopardy, the "same offense," Cherry v. State, 592 So.2d 292, 293 (Fla. 2d DCA 1991), we REVERSE the conviction and sentence as to Count Four and REMAND for the trial court to grant a JOA on Count Four. S......
-
Kipping v. State, 95-04795
...on all of the remaining counts of theft and the charge of scheme to defraud as to both Andrews and Kipping. Based upon Cherry v. State, 592 So.2d 292 (Fla. 2d DCA 1991), Kipping could not be sentenced on both the scheme to defraud and the theft charges which formed the basis for the scheme ......