Sirmons v. State

We have for review Sirmons v. State, 603 So.2d 82 (Fla. 5th DCA 1992), based on express and direct conflict with our decisions in Johnson v. State, 597 So.2d 798 (Fla.1992), and State v. Thompson, 607 So.2d 422 (Fla.1992). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Jesse Sirmons was convicted of grand theft of an automobile and robbery with a weapon. The convictions arose from a single taking of an automobile at knife point. Sir-mons now argues that because the offenses differ not in substance but only in degree, the dual convictions and sentences are improper.

The district court, relying on our pre-Ca-rawan decision of State v. Rodriquez, 500 So.2d 120 (Fla.1986), and our post-Carawan decision of State v. Smith, 547 So.2d 613 (Fla.1989), determined that the dual convictions were proper because each offense contains an element that the other does not. However, the district court expressed some doubt as to its holding in light of this Court’s recent decision in Johnson.

In Johnson, the defendant had been convicted of grand theft of cash and grand theft of a firearm for the snatching of a purse that contained both money and a firearm. We determined that the dual convictions and sentences were improper because “the value of the goods or the taking of a firearm merely defines the degree” of the theft and does not result in two separate crimes. Johnson, 597 So.2d at 799. In other words, the dual convictions could not stand because each offense was simply an aggravated form of the underlying offense of theft, distinguished only by degree factors.

In a similar vein, we recently held in Thompson that a defendant cannot be convicted of both fraudulent sale of a counterfeit controlled substance and felony petit theft where both charges arose from the same fraudulent sale. Thompson, 607 So.2d at 422. We agreed with the Fifth District Court of Appeal that section 775.021(4)(b)2., Florida Statutes (1989), bars the dual convictions because both fraudulent sale and felony petit theft are simply aggravated forms of the same underlying offense distinguished only by degree factors. Thompson v. State, 585 So.2d 492, 493-94 (Fla. 5th DCA 1991), approved & adopted by, State v. Thompson, 607 So.2d 422 (Fla.1992).

In the present case, Sirmons was convicted of robbery with a weapon and grand theft of an automobile. As in Johnson and Thompson, these offenses are merely degree variants of the core offense of theft. The degree factors of force and use of a weapon aggravate the underlying theft offense to a first-degree felony robbery. Likewise, the fact that an automobile was taken enhances the core offense to grand theft. In sum, both offenses are aggravated forms of the same underlying offense distinguished only by degree factors. Thus, Sirmons’ dual convictions based on the same core offense cannot stand.

Accordingly, we quash the decision below and remand for further proceedings consistent with this opinion.

It is so ordered.

BARKETT, C.J., and OVERTON and McDONALD, JJ., concur.

KOGAN, J., concurs with an opinion, in which BARKETT, C.J., concurs.

GRIMES, J., dissents with an opinion, in which SHAW and HARDING, JJ., concur.

. § 812.014(2)(c)4, Fla.Stat. (1989).

. § 812.13(2)(a), Fla.Stat. (1989).

.Carawan v. State, 515 So.2d 161 (Fla.1987), abrogation recognized, State v. Smith, 547 So.2d 613 (Fla.1989).