J.C.B. v. State

• Decision Date: 11 September 1987
• Docket Number: No. BN-104,BN-104
• Citation: 12 Fla. L. Weekly 2209,512 So.2d 1073
• Parties: 12 Fla. L. Weekly 2209 In the Interest of J.C.B., a child, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1073

512 So.2d 1073

12 Fla. L. Weekly 2209

In the Interest of J.C.B., a child, Appellant, v. STATE of Florida, Appellee.

No. BN-104.

District Court of Appeal of Florida First District.

Sept. 11, 1987.

Michael E. Allen, Public Defender, David A. Davis, Asst. Public Defender, and Pamela D. Presnell, Legal Asst., Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Henri C. Cawthon, Asst. Atty. Gen., Tallahassee, for appellee.

BARFIELD, Judge.

Appellant was charged with robbery under section 812.13, Florida Statutes (1983). The information alleged appellant "unlawfully by force, violence, assault or putting in fear, and with the intent to permanently deprive, take certain property towit: approximately $80 U.S. currency, a pair of boots, a wallet, a shirt, a pair of pants and underware [sic]" of the victim. A separate charge of battery was also made. Following a non-jury trial, the trial court found appellant guilty of battery and of grand theft. Defense counsel objected to the grand theft finding, contending that the allegation in the information was insufficient to establish grand theft. The trial court denied the objection, noting the items listed in the information would easily be in excess of $100, the threshold value for grand theft under section 812.014(2)(b).

The question before the court is whether the allegations in the information sufficiently allege the elements of grand theft as a lesser included offense of a charge of robbery.

A charge of robbery necessarily includes the elements of a charge of petit theft in that in proving a charge of robbery under section 812.13, the State must also prove the elements of petit theft under section 812.014(2)(c). Thus, petit theft is a necessarily included offense of robbery. State v. Rodriquez, 500 So.2d 120 (Fla.1986), overruled on other grounds, Carawan v. State, 515 So.2d 161 (Fla. 1987); Hand v. State, 199 So.2d 100 (Fla.1967) (larceny is necessarily included element of robbery). But there is a value element in grand theft under subsections 812.014(2)(a) and (b) (values greater than $20,000 and $100, respectively) that sets those crimes apart from the crimes of robbery or of petit theft. Because the value of the property taken is an element of a charge of grand theft, Haley v. State, 315 So.2d 525 (Fla. 2d DCA 1975), grand theft is not a necessarily included offense of a charge of robbery. Rodriquez v. State, 500 So.2d at 120. However, an indictment or information is sufficient to charge a lesser included offense such as grand theft where, by allegations contained within the document, all of the essential elements of the lesser offense are alleged. Thus, if the charging document sufficiently alleges the value of the property taken as exceeding $100, then the crime of second degree grand theft becomes a lesser included offense by virtue of the allegations in the pleadings. McCants v. State, 382 So.2d 753 (Fla. 4th DCA 1980).

The value of the property allegedly taken is an important element of any charge of grand theft, whether of the first or second degree and whether it is the principal crime charged or is a lesser included offense. The theft statute, section 812.014, and the Standard Jury Instructions on theft and on the prior crime of larceny all rely on the value of the property taken for enhancement of the potential penalty an accused may face upon conviction. ¹ Value remains an element of the crime because it is the factor that distinguishes the crimes of petit theft, first degree grand theft and second degree grand theft.

The elements of grand theft are the generic prohibited conduct set out in section 812.014(1), along with the value of the property taken as set out in either subsections 812.014(2)(a) or (b). The alleged value is the element that informs an accused of the penalty he faces for the conduct constituting theft. It also informs the accused of a critical element that he must defend against in the State's case against him, namely the issue of the value of the property. Due process principles mandate that a charging document inform the accused of the offenses he is charged with committing, the severity of the possible penalty and the elements which the State must establish before he may be lawfully convicted and punished for the prohibited conduct. Such information must adequately appear on the face of the pleading. It is not enough that the crime of grand theft might be comprehended within the general scope of the principal charge of robbery; the elements of that lesser crime must be specifically set forth within the pleading. State v. Anderson, 270 So.2d 353 (Fla.1972).

We cannot find that the information charging J.C.B. with robbery sufficiently alleged the...