J.M. v. State, 97-284
| Decision Date | 27 March 1998 |
| Docket Number | No. 97-284,97-284 |
| Citation | 709 So.2d 157 |
| Parties | 23 Fla. L. Weekly D835 J.M., A Child, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Belle B. Turner, Assistant Attorney General, Daytona Beach, for Appellee.
J.M. argues on appeal that the trial court erroneously adjudicated and sentenced him on both counts of armed robbery 1 and grand theft 2. He was found guilty on both counts, adjudicated a delinquent, and sentenced to a Level 10 commitment. We agree that J.M. should not have been adjudicated on the basis of both counts, under the circumstances of this case.
The evidence at trial disclosed, without dispute, that an individual identified as J.M. by Respoli, the victim, stormed into the apartment where Respoli was drinking a beer. J.M. had a BB gun in his hand. He demanded money and the car keys, which Respoli had dangling from his pinky finger. Respoli responded that he had no money. J.M. then grabbed the car keys out of Respoli's hand, ran out the door, and drove off in Respoli's girlfriend's car, a brown Pontiac Respoli had been driving.
The robbery count specifically described the property taken from Respoli during the robbery: "money or other property, to wit: a motor vehicle, vehicle keys...." In the grand theft count, the property taken was described as "a motor vehicle, to wit: Pontiac, the property of James Respoli, as owner or custodian...."
When robbery is accomplished by a defendant entering a residence and taking car keys along with other property and then proceeding immediately to the stolen vehicle, only one taking has occurred. Castleberry v. State, 402 So.2d 1231 (Fla. 5th DCA 1981). In Castleberry, we held that because possession of the vehicle was obtained as a product of the same force and fear involved in the robbery, the taking of the car was a lesser included offense of the robbery charge.
In Sirmons v. State, 634 So.2d 153 (Fla.1994), the Florida Supreme Court held that a defendant cannot be convicted separately for the offenses of armed robbery and grand theft auto because they are merely a degree variance of the same core offense of theft. Id. at 154. Multiple punishments or convictions are not permitted if the offenses in question are degrees of the same offense pursuant to section 775.021(4)(b)2, Florida Statutes (1989). See also ...
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Hayes v. State
...to justify separate convictions." Id. at 1047. As the Third District did in Hayes, the First District certified conflict with Castleberry and J.M. See Henderson, 778 So.2d at 1047.5 On facts materially indistinguishable from those in Hayes and Henderson, the Fifth District in Castleberry ad......
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Taylor v. State, 98-2840.
...of the motor vehicle should be vacated, given his conviction for armed robbery, based on the principles announced in J.M. v. State, 709 So.2d 157 (Fla. 5th DCA 1998). In J.M., the court found that dual convictions for robbery and grand theft auto were improper where both charges were based ......
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Henderson v. State
...taking and that, as a result, the defendants could not be convicted of both robbery and grand theft auto. Id. Accord J.M. v. State, 709 So.2d 157 (Fla. 5th DCA 1998). In Hayes v. State, 748 So.2d 1042 (Fla. 3d DCA 1999), review granted, 761 So.2d 329 (Fla.2000), a case factually indistingui......
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Hayes v. State
...the car. We recognize that the Fifth District Court of Appeal takes a different view and we certify direct conflict with J.M. v. State, 709 So.2d 157 (Fla. 5th DCA 1998), and Castelberry v. State, 402 So.2d 1231 (Fla. 5th DCA After the court gave jury instructions, the court addressed the p......