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Court Discusses Blockburger Test for Theft Case

In this case, the appellant appealed his convictions and sentences for fraudulent sale of a counterfeit controlled substance, and felony petit theft. He argued that both charges arose out of the same acts, and that this double conviction should be barred by section 775.021(4)(a) and (b), Fla.Stat.

A New York Criminal Lawyer said the record of this case established that Appellant told an undercover officer that he had rock cocaine for sale. He sold the officer a substance which proved not to be cocaine. For the fraudulent sale, he was sentenced as a habitual offender to ten years in prison. For the felony petit theft, he received a consecutive two-year term on community control followed by three years on probation.

The Florida Legislature has announced its intent that there should be separate and multiple convictions for each statutory offense that is committed during the course of a criminal transaction or episode. In section 775.021(4)(b) the Legislature set out basically only two exceptions to this policy. Subsections 1 and 3 are encompassed by the Blockburger test: statutory offenses which require proof of all of the same elements of proof; and those that require fewer, but identical elements of proof, which are necessarily included in the elements of the greater offense. Subsection 2 excepts “degree” crimes, such as the various forms of homicide.

If the Blockburger test is applied to the two crimes in this case, they are not “the same offense” because each has an essential element that the other lacks. Fraudulent sale requires a completed sale of a particular item (counterfeit contraband). Felony petit theft (petit larceny) requires proof of prior petit thefts, and the wrongful obtaining of property worth less than $300. Thus, as in the sale and possession of the same bits of rock cocaine, Blockburger or section 775.021(4)(a) and (b) do not bar multiple convictions in the same prosecution.

However, the fraudulent sale crime is placed in Chapter 817, which covers various fraudulent practices. Most of those crimes defined in chapter 817 could have historically been prosecuted as a form of larceny or theft. Chapter 817 breaks down larceny by fraud into fact-specific categories, such as obtaining property by fraudulent promise to furnish inside information, procuring assignments of produce upon false representations, making false invoices to defraud an insurer, etc.

Felony petit theft, on the other hand, is listed as a crime under the more general Anti-Fencing Act, Chapter 812, Florida Statutes. Florida’s Anti-Fencing Act, when enacted in 1977, eliminated technical distinctions between different theft and theft-related offenses in an effort to simplify prosecutions involving the wrongful acquisition by one person of the property of another. As used in the statute defining the crime of theft, the term “obtains or uses” means any manner of taking or exercising control over property, or making any unauthorized use, disposition, or transfer of property. This would include obtaining property by fraud, conduct previously known as stealing, conversion, embezzlement, or other conduct similar in nature. See Sec. 812.012(2), Florida Statutes (1989).

At present, Florida’s criminal code still retains specific theft statutes regarding particular property or practices, such as the fraudulent practices defined in Chapter 817. It appears that the specific statutory offenses of theft, such as those contained in Chapter 817, are different degrees (or more specific descriptions) of the general statutory offense of theft defined in Chapter 812. Accordingly, an act of criminal fraud should be prosecuted either under Florida’s Anti-Fencing Act or under a more specific statute contained in Chapter 817, if applicable, but the legislature did not intend for the same act of criminal fraud to be prosecuted under both statutes as separate offenses.

This case presents an unusual example of two statutory offenses which are not the “same” for Blockburger purposes, but which may nevertheless be barred from double conviction because of the historical development of the criminal code with regard to thefts. In this case there was one fraudulent sale prosecuted under the fact-specific statute. The general statutory offense (felony petit theft) may have been superseded by passage of the specific statute, for this fact situation, although this issue is not before us. However, a Manhattan Criminal Lawyer said the court held that section 775.021(4)(b) bars concurrent prosecution for the general theft crime together with the specific crime. The specific theft crimes have become “degrees” of the generally defined theft crime in Chapter 812, based on the history and current revision of Florida’s theft statute.

A New York Sex Crimes Lawyer said that because this is a case of first impression, and involved an issue of great public importance, the court vacated the conviction and sentence for petit larceny, and certified the following question to the Florida Supreme Court.

Stephen Bilkis and Associates with its New York Petit Larceny Lawyers have vast experiences involving cases mentioned above. It has convenient offices located within New York Metropolitan area, including Corona, New York.

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