ELESTER WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1993-11-05
No. 93-64
DAUKSCH and DIAMANTIS, JJ., concur.
626 So. 2d 299 Florida District Court of Appeal, Fifth District (1993)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Elester Wright was convicted of robbery with a firearm and grand theft. The court reversed the grand theft conviction, holding that ATM cards cannot be valued at the amount in their corresponding bank accounts for theft statute purposes, and that the theft was therefore petit theft, which is a necessarily lesser included offense of robbery.


Holding

The court reversed the grand theft conviction, holding that under Florida Statutes sections 817.60(1) and 817.67(1), the mere theft of an ATM card is a misdemeanor regardless of the bank account balance it represents, and its value for theft statute purposes is indeterminate. Therefore, the theft was petit theft, which is a necessarily lesser included offense of robbery and cannot support a separate grand theft conviction.


Headnotes

[1] The mere theft of an ATM card constitutes a misdemeanor offense, regardless of the value of the bank account it represents.

[2] The value of an ATM card, for purposes of theft statutes, is indeterminate and cannot alone support a grand theft conviction.

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Key Quotes

“The mere theft of an ATM card is a misdemeanor irrespective of the bank account it represents. Its inherent value, for purposes of the theft statute, is an indeterminate one, which cannot support the state's argument in the instant case.”

The court's core holding that ATM cards cannot be valued at their corresponding bank account balances for theft statute purposes.

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Facts & Procedural History

Wright was convicted of robbery with a firearm and grand theft. The state's case for grand theft depended on valuing the stolen items at $300 or more.…

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Opinion of the Court
COBB, Judge.

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 Simons 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 ease 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 af- feets 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 losing an advantage over those who do not know of or use the trade secret.

(b) If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100.

(c) Amounts of value of separate properties involved in thefts committed pursuant to one scheme or course of conduct, whether the thefts are from the same person or from several persons, may be aggregated in determining the grade of the offense.

It was clearly established at trial that the victim’s bank accounts for the ATM cards, together with the cash in the stolen wallet, exceeded $300.00. Wright argues, however, that ATM cards are governed by Part II of Chapter 817 of the Florida Statutes, which makes it only a misdemeanor to steal an ATM or a credit card. In other words, the value of an account corresponding to a card is relevant only at such time as the card is actually used to wrongfully withdraw or attempt to withdraw money from that account, which is not at issue in this case. The state has failed to effectively respond to this argument on appeal.

Based upon our reading of the provisions of sections 817.60(1) and 817.67(1), we agree with the argument of Wright. The mere theft of an ATM card is a misdemeanor irrespective of the bank account it represents. Its inherent value, for purposes of the theft statute, is an indeterminate one, which cannot support the state’s argument in the instant case. Therefore, we reverse Wright’s theft conviction as the petit theft is subsumed as a necessarily lesser included offense of the robbery. As a result, we do not reach the issue here which was certified in Simmons.

Wright’s conviction for grand theft is reversed and this cause is remanded for resentencing.

REVERSED AND REMANDED.

DAUKSCH and DIAMANTIS, JJ., concur.


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