West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          Florida law states that "a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts."

          In the case of Theron Toson versus the State of Florida, the issue was whether Mr. Toson could be found guilty of both grand theft and dealing in the property that was stolen in the grand theft case.  Toson argued that his conviction for both crimes violated the constitutional prohibition against double jeopardy and the Florida law quoted above.

          Florida's Fourth District Court of Appeal agreed with Toson stating:

"In [this] case, the information, the [police report], and the factual basis presented, established that the grand theft and three charges of dealing in stolen property to which Toson was making his open pleas, all involved the same property stolen in the course of a burglary of Patricia Gillette's home.   Toson testified at the plea hearing, without contradiction, that he sold the stolen items in order to support his crack cocaine addiction.

This court, in [the case of Blair versus the State of Florida], addressed a similar fact situation.   In Blair, the information charged the defendant with stealing jewelry on one date and dealing in the same jewelry on the same date or sometime thereafter.   The [State Attorney] was unable to prove the theft of the jewelry and the dealing of the same jewelry were distinct and unrelated criminal incidents.   Our court stated as follows:

'While we recognize that additional acts will always be required to dispose of the property in question, the legislative purpose of the [law quoted above] is to prevent dual convictions in connection with one scheme or course of conduct.   Absent something more to purposefully interrupt the two crimes by an unquestionably disjunctive period of time or series of events, defendant's conviction for one of the offenses must be set aside' "(italics added).

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          The Double Jeopardy Clause, which is contained in the Fifth Amendment to the United States Constitution, states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."

          The Double Jeopardy Clause is designed to protect individuals accused of committing crimes against the following three things:

1. It protects against a second prosecution for the same crime after acquittal;
2. It protects against a second prosecution for the same offense after conviction; and
3. It protects against multiple punishments for the same crime.

          Whether or not the Double Jeopardy Clause was violated was the issue decided just last month by the United States Court of Appeals for the Eleventh Circuit in the case of United States v. McIntosh.  In that particular case, Mr. McIntosh was indicted for the crimes of possession with intent to distribute five kilograms of crack cocaine and carrying a firearm during and in relation to a drug trafficking offense.  Two months later, he pled guilty to both crimes.

          The following month, the Assistant United States Attorney handling the case advised the judge and McIntosh's lawyer that the date contained in the indictment pertaining to when the two crimes occurred was incorrect.  A month after that, McIntosh was indicted again for the exact same crimes, but the new indictment contained the correct date regarding when the offenses happened.

          In response, McIntosh's attorney filed a motion to dismiss the second indictment in which he argued that the Double Jeopardy Clause prohibited McIntosh from being prosecuted for the exact same charges a second time.  The U.S. District Judge deciding the motion ruled against McIntosh in part because of his belief that jeopardy did not attach when McIntosh pled guilty since the first indictment was defective.

          Fortunately for Mr. McIntosh, the appellate court that heard his appeal disagreed with the lower-court judge and ruled that the motion to dismiss should have been granted.  In doing so, the Eleventh Circuit Court of Appeals reasoned that the Double Jeopardy Clause "plainly protects against a second prosecution for the same offense after conviction.  The acceptance of McIntosh's unconditional plea of guilt to the first indictment constituted convictions for the drug and firearm offenses:  The acceptance of an unconditional plea is itself a conviction.  Like a verdict of a jury it is conclusive.  More is not required; the court has nothing to do but give judgment and sentence.  A second conviction for the same offense violates the Double Jeopardy Clause."

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