CIKLIN, J.
Michelle Rimondi appeals her convictions and sentences for third-degree grand theft in violation of section 812.014, Florida Statutes (2009), and felony retail theft in concert with others in violation of section 812.015(8)(a). Rimondi raises two issues on appeal; however, we find merit in the double jeopardy issue only and decline to discuss the other issue. We reverse Rimondi's conviction and sentence for third-degree grand theft because it violates double jeopardy, but we affirm her conviction and sentence for felony retail theft.
On September 30, 2009, Rimondi and her husband, Luis Milian, entered a Walmart store located in Port St. Lucie. Ray Papsidero, a Walmart asset protection manager, observed Rimondi and Milian via the store's surveillance cameras. At some point, Papsidero saw them stop in a toy aisle. Milian motioned to Rimondi who then picked up a box of merchandise and held it just above the shopping cart. Rimondi continued to hold up the box while Milian removed some packages of razors from their shopping cart and concealed them inside his pants. After Milian placed the last item in his pants, he nodded to Rimondi who then placed the box she was holding up into the cart. Rimondi and Milian were subsequently arrested for stealing or attempting to steal the razors which were determined to have a retail value in excess of $400.
Based on the aforementioned incident, Rimondi was charged by information with third-degree grand theft and felony retail theft in concert with others. A jury found her guilty of both offenses as charged in the information. The trial court subsequently adjudicated Rimondi guilty of both charges and sentenced her to concurrent terms of thirty months in prison, followed by thirty months of probation for each conviction.
Rimondi argues that her convictions and sentences for both crimes violate the prohibition against double jeopardy. We agree. "Because double jeopardy issues involve purely legal determinations, the standard of review is de novo." Benjamin v. State, 77 So.3d 781, 783 (Fla. 4th DCA 2011). Additionally, because dual convictions in violation of the prohibition against double jeopardy constitute fundamental error, "a double jeopardy claim may be raised for the first time on appeal." DeLuise v. State, 72 So.3d 248, 252 (Fla. 4th DCA 2011).
"The most familiar concept of the term `double jeopardy' is that the Constitution prohibits subjecting a person to
To determine whether the Florida Legislature intended to authorize separate punishments for different offenses arising out of the same criminal transaction, courts first look to the statutes defining the crimes to see if there are any "specific, clear and precise statements of legislative intent." Valdes, 3 So.3d at 1071. Absent a clear statement of legislative intent in the criminal offense statutes themselves, courts employ the Blockburger
Section 775.021(4)(a) provides that offenses committed in "the course of one criminal transaction or episode" are separate offenses only "if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial." In section 775.021(4)(b), the legislature has stated that its intent "is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction." There are three enumerated exceptions to this rule of construction:
§ 775.021(4)(b), Fla. Stat. (2009).
Here, Rimondi was convicted and sentenced for both third-degree grand theft and felony retail theft in concert with others. There is no dispute in this case that both offenses were committed in the course of one criminal transaction or episode; therefore, we must determine if the legislature intended to authorize separate punishments for these two offenses when they are committed during the same criminal transaction. Neither statute contains any "specific, clear, and precise" statement of the legislative intent to authorize separate punishments for the two offenses when they arise out of the same criminal transaction.
The elements of third-degree grand theft are: (1) Knowingly (2) obtaining or using, or endeavoring to obtain or use, the property of another, (3) with the intent to either temporarily or permanently deprive the person of a right to the property or a benefit from it, or to appropriate the property to one's own use or the use of any other person not entitled to it; and (4) the value of the property taken is valued at $300 or more. See § 812.014, Fla. Stat. (2009).
The elements of felony retail theft under section 812.015(8)(a) are: (1) Knowingly (2) taking possession of or carrying away of merchandise, property, money, or negotiable documents; (3) with intent to deprive the merchant of possession, use, benefit, or full retail value; (4) the value of the property taken is valued at $300 or more; and (5) the person, individually or in concert with one or more other persons, coordinates the activities of one or more individuals in committing the offense. See § 812.015(1)(d), (8)(a), Fla. Stat. (2009).
Although worded differently, all of the elements of third-degree grand theft are included in the offense of felony retail theft in concert with others. The felony retail theft offense, however, contains an element that is not an element of the third-degree grand theft, namely that the defendant "coordinates the activities of one or more individuals in committing the offense."
The state contends that the dual convictions here are valid based on the Florida Supreme Court's ruling in Valdes, 3 So.3d at 1067, because the two offenses are found in separate statutory provisions. The state's reliance on Valdes is misplaced, however, because the supreme court in Valdes only addressed the interpretation of section 775.021(4)(b)2, which applies to
The fact that all of the elements of the third-degree grand theft were subsumed by the felony retail theft charge also makes this case distinguishable from McKinney v. State, 66 So.3d 852 (Fla. 2011), where the supreme court held that a defendant could be convicted of both robbery and grand theft for the same criminal transaction. Id. at 853. The supreme court noted:
Id. at 857. In this case, both the third-degree grand theft and the felony retail theft in concert with others require proof of the value of the property taken.
In summary, Rimondi's convictions and sentences for both third-degree grand theft and felony retail theft in concert with others violate the prohibition against double jeopardy because the statutory elements of the third-degree grand theft are subsumed by the felony retail theft offense. We therefore affirm the conviction and sentence for felony retail theft in concert with others (count II) and remand with instructions that the trial court vacate the conviction and sentence for third-degree grand theft (count I). See Pizzo, 945 So.2d at 1206 ("When an appellate court determines that dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the greater.").
Affirmed in part and reversed in part.
TAYLOR and GERBER, JJ., concur.