TONSHAD LEVON CULPEPPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Culpepper appeals his convictions for burglary, dealing in stolen property, and false verification of ownership, challenging jury instructions and the denial of a motion for judgment of acquittal. The court affirmed the convictions but certified conflict with prior appellate precedent and three questions of great public importance regarding whether juries must be instructed on the mutually exclusive nature of dealing in stolen property and grand theft charges under Florida Statute 812.025.
The court affirmed the convictions on all issues. Regarding the section 812.025 instruction, the court acknowledged its prior precedent in Williams v. State holding that such a jury instruction is not warranted and failure to give it does not require a new trial, but certified conflict with Kiss v. State and certified three questions of great public importance to the Florida Supreme Court for resolution.
[1] A trial court is not required to instruct the jury on the selection process described in section 812.025 of the Florida Statutes when charges of dealing in stolen propert…
[2] Failure to instruct the jury on the selection process described in section 812.025 of the Florida Statutes does not mandate a new trial on both offenses.
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Join FLexlaw to unlock all legal intelligence“Because the grand theft and dealing in stolen property charges arose from "one scheme or course of conduct," see § 812.025, the trial court dismissed the grand theft count.”
Establishes the factual basis for the trial court's action in dismissing one of the two potentially overlapping offenses
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Join FLexlaw to unlock all legal intelligenceThe State charged Culpepper with burglary of a dwelling, dealing in stolen property, grand theft, and false verification of ownership to pawnbroker. T…
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Tonshad Levon Culpepper appeals his convictions and sentences for burglary of a dwelling, dealing in stolen property, and false verification of ownership to pawnbroker. He raises three issues, asserting two errors in the jury instructions and an error in the denial of his motion for judgment of acquittal. As to the issue regarding the failure to give a jury instruction on dealing in stolen property and grand theft pursu*522ant to section 812.025, Florida Statutes (2011), we affirm and certify conflict with Kiss v. State, 42 So.3d 810 (Fla. 4th DCA 2010), and certify questions of great public importance. As to the remaining issues, we affirm without comment.
The State charged Culpepper with burglary of a dwelling, dealing in stolen property, grand theft, and false verification of ownership to pawnbroker, and the jury found Culpepper guilty as charged. Because the grand theft and dealing in stolen property charges arose from “one scheme or course of conduct,” see § 812.025, the trial court dismissed the grand theft count. The court then adjudicated Culpepper guilty of the z'emaining charges.
Culpepper contends that the trial court should have given his requested instruction to the jury that it could return a verdict for dealing in stolen property or grand theft, but not both, pursuant to Kiss, 42 So.3d 810, and section 812.025. Culpepper acknowledges this court’s precedent to the contrary in Williams v. State, 66 So.3d 360 (Fla. 2d DCA), review granted, 70 So.3d 588 (Fla.2011), in which this court determined that the jury instruction regarding section 812.025 is not warranted and failure to give the instruction does not require a new trial. This court has certified conflict with Kiss and certified three questions of great public importance to the Florida Supreme Court. See Wilkins v. State, 78 So.3d 18, 19 (Fla. 2d DCA 2011); Poole v. State, 67 So.3d 431, 432 (Fla. 2d DCA 2011); Williams, 66 So.3d at 365. We again certify conflict with Kiss and certify the following questions to the Florida Supreme Court that this court certified in Williams:
1.MUST THE TRIAL COURT INSTRUCT THE JURY TO PERFORM THE SELECTION PROCESS DESCRIBED IN SECTION 812.025 OF THE FLORIDA STATUTES?
2. IF SO, MUST THE APPELLATE COURT ORDER A NEW TRIAL ON BOTH OFFENSES IF THE TRIAL COURT FAILS TO GIVE THE INSTRUCTION?
3. IF THE APPELLATE COURT IS NOT REQUIRED TO MANDATE A NEW TRIAL, MUST IT REQUIRE THE TRIAL COURT TO SELECT THE GREATER OFFENSE OR THE LESSER OFFENSE WHEN THE TWO OFFENSES ARE OFFENSES OF DIFFERENT DEGREEES OR OF DIFFERENT SEVERITY RANKING?
Williams, 66 So.3d at 365.
Affirmed, conflict certified, and questions certified.
CASANUEVA and BLACK, JJ„ Concur.
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Citator
Cited By
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Tonshad Levon Culpepper v. State, 137 So. 3d 378 (Fla. 2014)…QUINCE, J. We have for review Culpepper v. State, 107 So. 3d 521 (Fla. 2d DCA 2013), in which the Second District Court of Appeal affirmed the trial court’s dismissal of a conviction of grand theft when the defendant was charged with both grand theft and dealing in stolen property in connection with one scheme or…
Authorities Cited
- Kiss v. State, 42 So. 3d 810 (Fla. 4th DCA 2010)
- Williams v. State, 66 So. 3d 360 (Fla. 2d DCA 2011)
- Poole v. State, 67 So. 3d 431 (Fla. 2d DCA 2011)
- Wilkins v. State, 78 So. 3d 18 (Fla. 2d DCA 2011)