Scott v. State

Decision Date09 February 1988
Docket NumberNo. 86-2322,86-2322
Parties13 Fla. L. Weekly 387 Cardinal SCOTT, Johnnie Mae Cobb and Sharon King, Appellants, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Sentence imposed for defendant's grand theft conviction could be enhanced from five to ten years, based on defendant's status as habitual offender. West's F.S.A. § 812.014(2)(b).

Bennett H. Brummer, Public Defender and Robert Kalter, Sp. Asst. Public Defender, for appellants.

Robert A. Butterworth, Atty. Gen., and Michele L. Crawford, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and HUBBART and DANIEL S. PEARSON, JJ.

SCHWARTZ, Chief Judge.

The only evidence of the value of the ten pairs of pants stolen by the defendants from a retail store was the price tags of $27.00 each they bore at the time of the crime. Contrary to the defendants' sole contention on this appeal from their grand theft convictions, we hold that this evidence was sufficient to support the finding that the goods were worth over $100. 1 Emshwiller v. State, 462 So.2d 457, 458 (Fla.1985) (proper to instruct jury in grand theft case that value of goods sold at retail is "the sale price of the merchandise at the time it was stolen"), aff'g, 443 So.2d 343 (Fla. 2d DCA 1983); Negron v. State, 306 So.2d 104 (Fla.1974); Thompson v. State, 249 So.2d 51 (Fla. 3d DCA 1971). Although there is no case which so holds, and although the defendants do not suggest what the nature of that evidence might be, they contend that the state must also introduce some independent testimony that the merchandise was "salable" at or near the designated price. This is plainly incorrect. To the extent that the Emshwiller and Negron cases suggest that "salability" might be a factor in determining value, 2 they also clearly indicate that the price tag itself supplies sufficient evidence of this element to carry the case to the jury and to support a guilty verdict as to the valuation issue. Negron, 306 So.2d at 108-09 ("At least the evidence should have shown the retail prices of all the allegedly stolen items in order to clearly demonstrate their market value and a salability at that price near the time of the alleged theft." [e.s.] ); see also Emshwiller, 462 So.2d at 458.

Two of the defendants who were habitual offenders were given terms of seven and ten years respectively in accordance with their guidelines recommendations. We again reject the defendants' contention, citing Whitehead v. State, 498 So.2d 863 (Fla.1986), that the habitual offender statute may no longer be employed to enhance the statutory sentence for the substantive crime, which, in the present case of grand theft, is five years. We have held to the contrary in Condiles v. State, 512 So.2d 331 (Fla. 3d DCA 1987); Wooten v. State, 515 So.2d 331 (Fla. 3d DCA 1987); Johnson v. State, 513 So.2d 1388 (Fla. 3d DCA 1987); and Bellinger v. State, 513 So.2d 732 (Fla. 3d DCA 1987), and do so again. Accord Hoefert v. State, 509 So.2d 1090 (Fla. 2d DCA 1987). We certify the same question framed in Condiles to the supreme court.

Affirmed.

1 At the time of the crime, the petty theft-grand theft breaking point was $100. It has since been...

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10 cases
  • State v. Garza
    • United States
    • Nebraska Supreme Court
    • August 14, 1992
    ...of property. See, State v. Stout, 273 N.W.2d 621 (Minn.1978); Kowalczk v. State, 195 Ga.App. 714, 394 S.E.2d 594 (1990); Scott v. State, 519 So.2d 734 (Fla.App.1988); Norris v. State, 475 S.W.2d 553 However, we bear in mind those Nebraska decisions, previously mentioned, regarding the natur......
  • Leon v. Moore, 99-750.
    • United States
    • Florida District Court of Appeals
    • May 19, 1999
    ...by the provisions of the Florida Evidence Code...." Watson v. State, 415 So.2d 128 (Fla. 4th DCA 1982). See generally Scott v. State, 519 So.2d 734 (Fla. 3d DCA 1988). The fact that the First District has recently come to a different conclusion on similar facts, see Lukaj v. State, 24 Fla. ......
  • Felder v. State, 90-1195
    • United States
    • Florida District Court of Appeals
    • January 22, 1991
    ...appellee. Before BASKIN, FERGUSON and LEVY, JJ. PER CURIAM. Affirmed. Smith v. State, 562 So.2d 787 (Fla. 1st DCA 1990); Scott v. State, 519 So.2d 734 (Fla. 3d DCA), rev. denied, 528 So.2d 1183 ...
  • SPS v. State, 3D01-537.
    • United States
    • Florida District Court of Appeals
    • October 3, 2001
    ...J. (dissenting). I respectfully dissent and would affirm defendant's conviction for the crime of grand theft. In Scott v. State, 519 So.2d 734 (Fla. 3d DCA 1988), the accused was charged with grand theft. The only evidence presented by the state to establish the value of the stolen items of......
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