Livar v. State

District Court of Appeal of Florida

Livar v. State

873 So. 2d 544, 2004 Fla. App. LEXIS 7062, 2004 WL 1123489

CourtDistrict Court of Appeal of Florida

DecidedMay 21, 2004

DocketNo. 2D03-1191

StatusPublished

This text of 873 So. 2d 544 (Livar 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

Livar v. State, 873 So. 2d 544, 2004 Fla. App. LEXIS 7062, 2004 WL 1123489 (Fla. Ct. App. 2004).

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Opinion

DAVIS, Judge.

Edward Lee Livar challenges his conviction and sentence for petit theft, raising three issues on appeal. Because the trial court improperly instructed the jury, we reverse.

The State charged Livar with grand theft of an' automobile and petit theft of a check. At trial, after the State rested, the trial court granted Livar’s motion to dismiss the petit theft charge. However, during the charge conference, the State requested that the trial court instruct the jury on petit theft as a lesser included offense of grand theft of an automobile. Counsel for Livar objected, arguing that there were no logical lesser included offenses for grand theft of an automobile. The trial court disagreed and gave the instruction. Following deliberations, the jury returned a verdict of guilty as to the lesser included offense of petit theft.

Section 812.014(3)(a), Florida Statutes (2002), provides: “Theft of any property not specified in subsection (2) is petit theft of the second degree.... ” In Lewellen v. State, 682 So.2d 186, 187 (Fla. 2d DCA 1996), this court noted that “[tjheft of a motor vehicle is specified in subsection (2) and classified as grand theft of the third degree, a third[-]degree felony. Thus, pet-it theft is not a proper lesser included offense of grand theft of a motor vehicle.” (Citing Johnson v. State, 380 So.2d 1024, 1026 (Fla.1979).) Accordingly, the trial court here erred in giving the petit theft instruction. Because the error was preserved by objection below, see id. at 188, we must reverse Livar’s conviction. As [545]*545such, we need not address the other two issues raised by Livar on appeal.

Reversed.

SILBERMAN and COVINGTON, JJ., concur.

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DAVIS, Judge.

Edward Lee Livar challenges his conviction and sentence for petit theft, raising three issues on appeal. Because the trial court improperly instructed the jury, we reverse.

The State charged Livar with grand theft of an' automobile and petit theft of a check. At trial, after the State rested, the trial court granted Livar’s motion to dismiss the petit theft charge. However, during the charge conference, the State requested that the trial court instruct the jury on petit theft as a lesser included offense of grand theft of an automobile. Counsel for Livar objected, arguing that there were no logical lesser included offenses for grand theft of an automobile. The trial court disagreed and gave the instruction. Following deliberations, the jury returned a verdict of guilty as to the lesser included offense of petit theft.

Section 812.014(3)(a), Florida Statutes (2002), provides: “Theft of any property not specified in subsection (2) is petit theft of the second degree.... ” In Lewellen v. State, 682 So.2d 186, 187 (Fla. 2d DCA 1996), this court noted that “[tjheft of a motor vehicle is specified in subsection (2) and classified as grand theft of the third degree, a third[-]degree felony. Thus, pet-it theft is not a proper lesser included offense of grand theft of a motor vehicle.” (Citing Johnson v. State, 380 So.2d 1024, 1026 (Fla.1979).) Accordingly, the trial court here erred in giving the petit theft instruction. Because the error was preserved by objection below, see id. at 188, we must reverse Livar’s conviction. As [545]*545such, we need not address the other two issues raised by Livar on appeal.

Reversed.

SILBERMAN and COVINGTON, JJ., concur.

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873 So. 2d 544, 2004 Fla. App. LEXIS 7062, 2004 WL 1123489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/livar-v-state-fladistctapp-2004.

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