HERNANDO RIOS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hernando Rios appealed his convictions for both grand theft of a motor vehicle and failure to return a hired vehicle, arguing that convicting him of both offenses violated double jeopardy protections. The court held that because the failure to return a hired vehicle statute's elements are necessarily included within the grand theft statute, a defendant cannot be constitutionally convicted of both crimes based on the same conduct.
A defendant cannot be constitutionally convicted of both grand theft and failure to return a hired vehicle because the elements of the failure to return statute are necessarily included within the elements of the general theft statute. Double jeopardy principles prohibit multiple convictions for the same conduct when one offense is necessarily included in the other.
[1] A conviction for failure to return a hired vehicle necessarily includes the elements of theft when the facts demonstrate a taking with the intent to deprive the owner of…
[2] Convicting a defendant for both grand theft of a motor vehicle and failure to return a hired vehicle, when the latter offense is included within the former, violates doub…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“if one commits the failure to return the hired vehicle crime then he has also necessarily completed the theft element of a taking with the intent to deprive the owner of the use of the vehicle”
Establishes that the failure to return statute's elements are necessarily included within the theft statute
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRios rented a motor vehicle under an agreement to return it by a specified date. He kept the vehicle beyond the due date and failed to return it. He w…
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[*796] DAUKSCH, Judge.
This is an appeal from convictions for grand theft of a motor vehicle1 and failure to return a hired vehicle.2 The question on appeal is whether appellant could be constitutionally convicted of both offenses when the facts are that appellant rented a car, kept it beyond its due date for return and failed to return it.
Although the elements of the failure to return a hired vehicle crime and the theft crime are not the same, it is clear that the specific crime regarding a hired vehicle is generally included in the general theft statute. That is to say, if one commits the failure to return the hired vehicle crime then he has also necessarily completed the theft element of a taking with the intent to deprive the owner of the use of the vehicle.
The general theft statute, section 812.014, Florida Statutes (1993) defines that crime as follows:
1. A person commits theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit therefrom.
(b) Appropriate the property to his own use or to the use of any person not entitled thereto.
The failure to return a hired vehicle statute provides:
817.52(3), FAILURE TO REDELIVER A HIRED VEHICLE. — Whoever, after hiring a motor vehicle under an agreement to redeliver the same to the person letting such motor vehicle or his agent, at the termination of the period of which it was let, shall, without the consent of such person or persons and with intent to defraud, abandon or willfully refuse to redeliver such vehicle as agreed shall, upon conviction, be guilty of a felony ...
§ 817.52(3), Fla.Stat. (1993).
Because the failure to return elements fit within the grand theft elements it was error, constitutionally under the double jeopardy clauses, to convict appellant of both. See Thompson v. State, 585 So. 2d 492 (Fla. 5th DCA 1991).
REVERSED; REMANDED for resentencing.
THOMPSON, J., concurs.
W. SHARP, J., concurs in result only.
. § 812.014(l)(a), (b) & (2)(c)(4), Fla.Stat. (1993).
. § 817.52(3), Fla.Stat. (1993).
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Levarity v. State, 13 So. 3d 1098 (Fla. 3d DCA 2009)…term of the lease had expired. Logically, once this offense was set into being, it necessarily continued (and thus was not complete) as long as the vehicle was not returned to the lessor when it should have been.”) (footnote omitted); Rios v. State, 660 So. 2d 795, 796 (Fla. 5th DCA 1995) (“Although the elements of the failure to return a hired vehicle crime and the theft crime are not the same, it is clear that the specific crime regarding a hired vehicle is generally included in the general theft statute. T…
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Chagnon v. State, 148 So. 3d 527 (Fla. 5th DCA 2014)…with the intent to deprive the owner of a benefit therefrom and did appropriate said property for her own use — the taxi fare. Thus, although petit theft does not require the hiring of a taxi, the remaining elements are the same. In Rios v. State, 660 So. 2d 795, 796 (Fla. 5th DCA 1995), this court found that “[a]l-though the elements of the failure to return a hired vehicle crime and the theft crime are not the same, it is clear that the specific crime regarding a hired vehicle is generally included in the…
Authorities Cited
- Thompson v. State, 585 So. 2d 492 (Fla. 5th DCA 1991)