Public-domain · open source
OpenJurist

550 So. 2d 34

550 So.2d 34

14 Fla.L.Weekly 1953

Seay v. State

District Court of Appeal of Florida

Decided August 16, 1989

District Court of Appeal of Florida · decided 1989-08-16

Relies on 515 So. 2d 161 - Carawan v. State · 547 So. 2d 613 - State v. Smith · Kelly v. State

Decided 1989-08-16

FRANK, Judge.

¶1The appellant was convicted of armed robbery, burglary, grand theft, and aggravated battery after he and a cohort entered the victim’s dwelling, battered him about the head with an axe handle and a steel bar, and stole money from a safe. Of the issues raised, we find merit only in the contention that the appellant was improperly convicted of grand theft for the same stolen money that was the object of the armed robbery. We recently addressed this identical issue in Kelly v. State, 546 So.2d 441 (Fla. 2d DCA 1989), and concluded, on the authority of Carawan v. State, 515 So.2d 161 (Fla.1987), that the conviction for grand theft, which is a lesser included offense of armed robbery, could not stand. Although Carawanhas been superseded by section 775.021(4)(b), Florida Statutes (1988 Supp.), we noted in Kellythat ex post facto considerations preclude retroactive application of the statute. State v. Smith, 547 So.2d 613 (Fla.1989).

¶2Accordingly, this cause is remanded for the trial court to vacate the grand theft conviction. In all other respects this matter is affirmed.

DANAHY, A.C.J., and PATTERSON, J., concur.
/550/so2d/34 · .json · Public domain