Wright v. State, 93-64

• Decision Date: 05 November 1993
• Docket Number: No. 93-64,93-64
• Citation: 626 So.2d 299
• Parties: 18 Fla. L. Weekly D2353 Elester WRIGHT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 299

626 So.2d 299

18 Fla. L. Weekly D2353

Elester WRIGHT, Appellant, v. STATE of Florida, Appellee.

No. 93-64.

District Court of Appeal of Florida,

Fifth District.

Nov. 5, 1993.

James B. Gibson, Public Defender, and Nancy Ryan, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Judge.

The appellant, Elester Wright, was convicted of robbery with a firearm and grand theft. He challenges the grand theft conviction on two bases:

1) The state failed to prove the value of the stolen items was $300.00 or more.

2) If the theft underlying the robbery was petit theft instead of grand theft, as argued above, then the theft is a necessarily lesser included offense of the robbery pursuant to State v. Rodriquez, 500 So.2d 120 (Fla.1986). The defendant also requests, in the event we determine that the evidence was sufficient to support a conviction for grand theft, that we certify the question as to whether grand theft and robbery are the same offense when predicated on a single act as we did in the recent case of Sirmons v. State, 603 So.2d 82 (Fla. 5th DCA 1992), rev. accepted, 613 So.2d 9 (Fla.1992).

In regard to the first argument, Wright points out that the state conceded in its closing argument to the jury that the value of the victim's stolen wallet and its contents did not amount to $300.00 unless the jury could consider two automatic teller machine cards (ATM cards) in the wallet as "written instruments" as defined by section 812.012(9), Florida Statutes (1991), which provides the following definition of "value" in regard to the crime of theft:

(9) "Value" means value determined according to any of the following:

(a) 1. Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.

2. The value of a written instrument that does not have a readily ascertainable market value, in the case of an instrument such as a check, draft, or promissory note, is the amount due or collectible or is, in the case of any other instrument which creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation, the greatest amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.

3. The value of a trade secret that does not have a readily ascertainable market value is any reasonable value representing the damage to the owner, suffered by reason of...