New York Criminal Lawyer Blog
The appellant of the case is Dude Emshwiller. The appellee in the case is the State of Florida. The case is being heard in the second district of the District Court of Appeal in Florida.
Appeal
Dude Emshwiller, the appellant is appealing his original judgment and sentencing. The original sentence is for three years on the charges of grand theft.
Case Discussion
A New York Criminal Lawyer said the appeal that is presented to the court comes with a confused record of what exactly the appellant was charged with and convicted for. When discussing the case, we must determine the differences between retail theft as defined in the Florida Statutes 812.015 is a different offense than theft as described in the Florida Statutes under 812.014. We find that they are not separate criminal offenses and for this reason are in conflict with a previous case “Tobe versus State.”
The information that has been provided to us in this case states that the appellant unlawfully took possession of merchandise that was valued at over $100. Through the proceedings that took place, it is our understanding that the State of Florida, appellee, and appellant considered the appellant being charged with grand theft in the second degree. The appellant agreed to a form provided to the jury that offered the choices of guilty of grand theft, guilty of petit larceny, or not guilty. The jury came to the conclusion that the appellant was guilty of grand theft as charged.
When the jury came back with its verdict, the trial judge also entered a judgment. The judgment entered by the judge stated he was guilty of retail theft with grand theft entered in parenthesis. The sentencing was continued pending the completion of the presentencing investigations. When the appellant was sentenced another judgment was entered that only charged the appellant with retail theft and there is no reference to grand theft.
The problem with the sentencing comes into the fact that in a retail theft where the sale value of the merchandise can be proven is considered to be a second degree misdemeanor and is separated from a theft under the Florida statute 812.014. A Westchester County Criminal Lawyer said the jury instructions in a misdemeanor case are provided in this type of case. However, we are unable to find any evidence of the sale value of the merchandise being proven.
Court Opinion and Ruling
While we do not agree with the statement provided by the trial judge that states he did not believe that market value was being dealt with, we do find that the instructions that were given to the jury were sufficient. The judge instructed that the defendant was accused of retail theft and explained that the punishment for such a crime was based on the value of the merchandise that was stolen. He also went on to explain the differences between the terms of grand theft and petit theft. He also explained that the value of the property was the price it could be sold for at the time it was stolen.
After reviewing the case, we believe that there should not be a separate retail theft charge, but rather that the appellant was simply charged with grand theft. For this reason, the court will uphold the sentencing and conviction, but remand that the judgment be changed to reflect that the appellate was charged with grand theft and not retail theft.
At the law offices of Stephen Bilkis & Associates you will find a team of expert lawyers that are willing to help you through any type of legal situation that you find yourself in, whether it be for theft, sex crimes or drug possession. Our team will be happy to sit down with you and determine the best course of action. We have offices located in New York City for your convenience. Call and set up your free consultation today.