Opinion
No. 1D21-2892
06-14-2023
Douglas A. MORIN, Appellant, v. STATE of Florida, Appellee.
Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Virginia Chester Harris, Senior Assistant Attorney General, Tallahassee, for Appellee.
Candice K. Brower, Criminal Conflict & Civil Regional Counsel, and Michael J. Titus, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Virginia Chester Harris, Senior Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam. Appellant was charged and found guilty by jury of burglary of structure with a mask, grand theft from a retail merchant with a mask, and two counts of petit theft with a mask. We agree with Appellant and the State's concession of error that his convictions on two counts of petit theft committed in the same transaction violates the Double Jeopardy Clause of the United States and Florida Constitutions. We otherwise affirm without further comment.
"[B]oth the United States and Florida Constitutions contain double jeopardy clauses that ‘prohibit subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense.’ " State v. Maisonet-Maldonado , 308 So. 3d 63, 66 (Fla. 2020) (quoting State v. Shelley , 176 So. 3d 914, 917 (Fla. 2015) ). "In cases of theft convictions, where the offenses are ‘merely degree variants of the core offense of theft ... dual convictions based on the same core offense cannot stand.’ " Mixson v. State , 857 So. 2d 362, 364 (Fla. 1st DCA 2003) (quoting Sirmons v. State, 634 So. 2d 153, 153–54 (Fla. 1994) ). "This is true ‘because each offense [is] simply an aggravated form of the underlying offense of theft, distinguished only by degree factors.’ " Id. "[T]o permit the dividing into several larcenies of objects which are the subject of larceny ... when stolen at the same time, from the same place, and under the same circumstances with the same intent, would be violative of the spirit of the Constitution ... that a man should not be put in jeopardy twice for the same offense." Hearn v. State , 55 So. 2d 559, 561 (Fla. 1951) ; see also Tindal v. State , 145 So. 3d 915, 923–24 (Fla. 4th DCA 2014) (reversing two petit theft counts where multiple items were taken during the same criminal episode, as part of the same acts, and the same proof elements were involved).
Here, Appellant smashed-and-grabbed two chainsaws and a weedeater from the merchant at the same place and time, and under the same circumstances. His conviction on three separate theft counts thus triggers Hearn's single larceny rule. 55 So. 2d at 561 . Accordingly, we affirm in part and reverse in part, and remand with directions for the trial to vacate the conviction and concurrent sentences for the two petit theft counts.
Lewis, Roberts, and Osterhaus, JJ., concur.