Colletti v. State

74 So. 3d 497, 2011 Fla. App. LEXIS 13053, 2011 WL 3659458
CourtDistrict Court of Appeal of Florida
DecidedAugust 19, 2011
Docket2D09-4341
StatusPublished
Cited by5 cases

This text of 74 So. 3d 497 (Colletti v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colletti v. State, 74 So. 3d 497, 2011 Fla. App. LEXIS 13053, 2011 WL 3659458 (Fla. Ct. App. 2011).

Opinions

NORTHCUTT, Judge.

A jury convicted Stephen Colletti of third-degree felony murder. See § 782.04(4), Fla. Stat. (2008). On appeal, he contends that the State failed to prove the underlying felony and that, therefore, the evidence was insufficient to support his felony murder conviction. See Sori v. State, 477 So.2d 49, 50-51 (Fla. 2d DCA 1985). We agree, and we reverse Colletti’s conviction.

Colletti was initially tried on three charges: second-degree murder, third-degree felony murder, and aggravated battery with a firearm. At his first trial the jury acquitted him of second-degree murder and aggravated battery. The jury hung on the third-degree felony murder count, and the State retried Colletti on that charge.

The information identified Colletti’s underlying felony as the grand theft of items he took from the victim’s residence. Section 812.014(2)(d), Florida Statutes (2008), establishes the crime of third-degree grand theft when property valued at $100 or more is taken from a dwelling or the curtilage of a dwelling. After the State rested its case at Colletti’s retrial, Colletti moved for judgment of acquittal. The trial court remarked that the State had presented no evidence of the value of the items stolen. It noted that the State had the burden of proving that the value of the property taken was $100 or more. The prosecutor replied that the evidence showed that a safe was taken from the wall of the victim’s home and that the safe may have contained money and drugs worth over $100. The court also noted that a DVR was taken and that the safe itself, [499]*499the contents of the safe, and the DVK, provided sufficient evidence for the jury to find a value of more than $100. In addition, one of Colletti’s alleged accomplices testified that a laptop computer and a mobile phone, which he described as an “iPod phone,” were taken. The court denied Colletti’s motion for judgment of acquittal.

To convict an accused of grand theft, the State must prove the value of the items taken beyond a reasonable doubt. Evans v. State, 452 So.2d 1040, 1041 (Fla. 2d DCA 1984). The value of tangible property is established by “the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)(l). Here, as the trial court pointed out, the State presented no evidence of value at all. But the statute defining the term “value” provides that if the actual value cannot be ascertained, the jurors may find that it is “not less than a certain amount[.]” § 812.012(10)(b). On the other hand, the statute also provides that “if no such minimum value can be ascertained, the value is an amount less than $100.” Id.

We have found only one reported case in which, as here, the State presented no admissible evidence of the stolen property’s value and the value nevertheless was deemed to meet the grand theft minimum amount. That decision, Jackson v. State, 413 So.2d 112, 114-15 (Fla. 2d DCA 1982), was the first to apply section 812.012(10)(b) so as to permit the jury to find that stolen property was worth “not less than a certain amount.” In Jackson, the stolen property was a nearly new, thirty-seven-foot sailboat. The Jackson court held that, considering the nature of the property, no reasonable person could doubt that its value exceeded $100. But the court cautioned that such a valuation “should occur only in those rare instances when the minimum value is indisputable and the jury cannot ascertain a specific value from the evidence or lack of evidence before it.” Id. at 112.

The Florida Supreme Court recently disapproved Jackson, holding that it had misinterpreted the “minimum value” provision of the theft statute. Marrero v. State, 71 So.3d 881 (Fla.2011). “Jackson improperly breathes an extremely broad interpretation of a narrow statutory provision into the criminal theft statute,” the court wrote. “Section 812.012(10)(b) provides that ‘[i]f the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount.’ (Emphasis supplied.)” Id. at 888.

A plain reading of this criminal theft provision reveals that a jury is only allowed to determine a minimum value instead of an actual value if the value of property cannot be ascertained. Jackson replaces the requirement that the value of the stolen property be impossible to ascertain with a completely unrelated condition of the State’s failure to present evidence of value (although capable of valuation) and jurors “could not doubt that its value exceeded” the required amount. See Jackson, 413 So.2d at 112. This misinterpretation of the criminal theft statute is not supported by any authority whatsoever and in fact runs contrary to the plain language of the criminal theft statute and the criminal mischief statute. We therefore disapprove of Jackson’s disregard of the impossibility prerequisite articulated in section 812.012(10)(b).

Id.

In Colletti’s case, the State did not demonstrate, and the record does not reflect, that it was impossible to prove the value of the stolen items, i.e., “the market value of the property at the time and place of the [500]*500offense or, if such [could not] be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)(l). That being the case, the “minimum value” exception to the State’s burden to prove the value of the stolen property was not applicable.

In any event, we note that a number of cases decided before Marrero have held that allowing a jury to determine a minimum value under section 812.012(10)(b) is permissible only in “those rare cases where the minimum value of an item of property is so obvious as to defy contradiction.” Weatherspoon v. State, 419 So.2d 404, 405 (Fla. 2d DCA 1982); see also K.W. v. State, 13 So.3d 90, 92 (Fla. 3d DCA 2009). Such cases are rare indeed; in nearly every reported decision involving proof of valuation based on the “minimum value” theory, Florida’s appellate courts have found the evidence wanting. See D.H. v. State, 864 So.2d 588, 589 (Fla. 2d DCA 2004) (rejecting State’s argument that the sheer number of items, including DVD player, a Sony Playstation, and cameras, was sufficient to prove that the stolen items had a value that met the grand theft minimum); see also A.D. v. State, 30 So.3d 676, 678 (Fla. 3d DCA 2010) (declining State’s invitation to find a minimum value for stolen items, i.e., a cell phone, a fishing rod, an iPod, a truck radio, and a boat battery charger, sufficient to meet the grand theft threshold when the State presented slim evidence of the condition of the items); K.W., 13 So.3d at 92 (rejecting the notion that a nice cell phone automatically met the “minimum value” for grand theft under section 812.012(10)(b)); Doane v. State, 847 So.2d 1015, 1018 (Fla. 5th DCA 2003) (holding that when the State presented insufficient evidence of market value of stolen items — two computer monitors, two central processing units, two keyboards, a scanner, a printer, and a 35 mm Nikon camera — “the value of the stolen equipment was not ‘so obvious as to defy contradiction’ ”).

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Bluebook (online)
74 So. 3d 497, 2011 Fla. App. LEXIS 13053, 2011 WL 3659458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colletti-v-state-fladistctapp-2011.