Opinion
No. 91-4131.
September 13, 1995.
An appeal from the Circuit Court for Escambia County; Nancy Gilliam, Judge.
Charles E. Russell, Pensacola, and Anthony Lewis, pro se, for appellant.
Robert A. Butterworth, Attorney General, James W. Rogers, Senior Assistant Attorney General, Tallahassee, for appellee.
Anthony Lewis appeals his conviction for petit theft. He contends in his initial supplemental brief that this count of his three-count judgment and the corresponding sentence must be set aside. On the other counts, he was convicted and sentenced below for forgery and for uttering a forgery. The convictions for petit theft and for uttering a forgery were both based on the single act of attempting to cash a forged check. We reverse the petit theft conviction on double jeopardy grounds.
This case presents the "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." Thompson v. State, 585 So.2d 492, 494 (Fla. 5th DCA 1991), approved, 607 So.2d 422 (Fla. 1992). The state charged and proved a single attempt by appellant to obtain property (money) of a single victim by cashing a forged check. Lewis was prosecuted under section 831.02, Florida Statutes (1993), which prohibits knowingly uttering a forgery with the intent to defraud, and under the general theft statute, section 812.014, Florida Statutes (1993), which prohibits knowingly endeavoring to obtain the property of another by any means. The theft statute treats attempted theft the same as the completed crime. See McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980).
Section 775.021(4)(b) bars dual convictions under these statutes for the same act, in these circumstances. "The specific theft crimes have become `degrees' of the generally defined theft crime in Chapter 812." Thompson, 585 So.2d at 494. This case is distinguishable from Henderson v. State, 572 So.2d 972 (Fla. 3d DCA 1990), approved, 583 So.2d 1030 (Fla. 1991), in that Lewis did not actually obtain any funds. Unlike the theft convictions in Henderson, each of which involved "a separate act of theft," id. at 974, appellant's (attempted) theft conviction rests on no act other than uttering the forged instrument.
Our conclusion in this case is also consonant with the view the supreme court expressed in Sirmons v. State, 634 So.2d 153 (Fla. 1994), which goes beyond the Blockburger "elements" test of double jeopardy and forbids multiple prosecutions for a single act, even if it is linguistically possible to express two or more offenses so that each contains an element the other lacks. See also Watson v. State, 655 So.2d 1250 (Fla. 1st DCA 1995); McConn v. State, 648 So.2d 837 (Fla. 2d DCA 1995); Blanchard v. State, 634 So.2d 1118 (Fla. 2d DCA 1994).
Appellant's conviction for forgery under section 831.01, Florida Statutes (1993), is supported by proof of the separate act of forging the payor's name and is therefore affirmed, as is the conviction for uttering a forgery. Appellant's conviction for petit theft is reversed.
BARFIELD and WOLF, JJ., concur.
WOLF, J., concurs with opinion, in which BARFIELD, J., concurs.
I join in Judge Benton's opinion because appellant cannot be convicted for both uttering a forged instrument and petit theft arising out of one criminal transaction. I concur because (1) if one looks only at the statutory elements of the crime as we are mandated to do by section 775.021(4), Florida Statutes (1993), and Brown v. State, 617 So.2d 744 (Fla. 1st DCA 1993), affirmed, 633 So.2d 1059 (Fla. 1994), then a person cannot commit the offense of uttering a forged instrument pursuant to section 831.02, Florida Statutes (1993), without also committing a theft pursuant to section 812.014, Florida Statutes (1993); (2) if we have a right to look at the facts of this case in determining whether a separate crime has occurred, then Henderson, supra, is inapplicable since no money exchanged hands in the instant case; and (3) this case is indistinguishable from Watson v. State, 655 So.2d 1250 (Fla. 1st DCA 1995), where this court found that a party could not be convicted for both theft and another crime which constituted nothing more than the manner in which the theft was committed.
Section 775.021(4) mandates that the determination of whether two separate crimes have occurred should be made "without regard to the accusatory pleading or the proof adduced at trial." This appears to be a legislative mandate that the courts of this state ignore. In Henderson v. State, 572 So.2d 972 (Fla. 3d DCA 1990), approved, 583 So.2d 1030 (Fla. 1991), the court determined that a person may be convicted of both uttering a forged instrument and theft because the crime of uttering was completed prior to the money being exchanged and the theft was completed upon receipt of the money; therefore, separate criminal acts had occurred. This opinion ignores the language in § 812.014, Fla. Stat. (1993) (also the same language as in the 1985 statute cited by the court), that one commits a completed theft upon endeavoring to obtain the property of another.
I also write to note the amount of time and judicial labor which has been spent on a case where our decision has no practical effect. This case originally came to this court on an Anders brief. Appellant is a habitual offender who has been sentenced to concurrent 10-year terms on counts I and II. His guideline scoresheet indicated a recommended and permitted sentence of life. The effect of our decision is to overturn a 60-day concurrent sentence for a second-degree misdemeanor, a sentence appellant had already served at the time of sentencing. I wonder whether both justice and effective use of judicial labor would have been better served by a simple per curiam affirmance.