Summary
adopting district court decision holding that dual convictions of fraudulent sale of a counterfeit controlled substance and felony petit theft for the same act are barred because the offenses are both degrees of theft
Summary of this case from State v. FloridaOpinion
No. 78728.
November 12, 1992.
Application for Review of the Decision of the District Court of Appeal — Certified Great Public Importance, Fifth District — Case No. 90-2074 (Seminole County).
Robert A. Butterworth, Atty. Gen., and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for petitioner.
James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for respondent.
This is a petition to review Thompson v. State, 585 So.2d 492 (Fla. 5th DCA 1991), in which the Fifth District Court of Appeal held that Thompson cannot be sentenced for both the sale of a counterfeit controlled substance and for felony petit theft when both offenses are based on the same conduct. The district court certified the following question as one of great public importance:
CAN A DEFENDANT BE PROPERLY CONVICTED OF BOTH FRAUDULENT SALE OF A COUNTERFEIT CONTROLLED SUBSTANCE AND FELONY PETIT THEFT WHERE BOTH CHARGES AROSE FROM THE SAME FRAUDULENT SALE?Id. at 495. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the certified question in the negative and approve in full the district court decision, finding that it is consistent with our decision in Houser v. State, 474 So.2d 1193 (Fla. 1985). We find that State v. Bussey, 463 So.2d 1141 (Fla. 1985), is not applicable under the circumstances of this case and agree with the district court that this is a theft crime. We adopt the opinion of the district court as the opinion of this Court.
It is so ordered.
BARKETT, C.J., and McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.