Lewis v. State

¶1concurring.

¶2I join in Judge Benton’s opinion because appellant cannot be convicted for both uttering a forged instrument and petit theft arising out of one criminal transaction. I concur because (1) if one looks only at the statutory elements of the crime as we are mandated to do by section 775.021(4), Florida Statutes (1993), and Brown v. State, 617 So.2d 744 (Fla. 1st DCA 1993), affirmed, 633 So.2d 1059 (Fla.1994), then a person cannot commit the offense of uttering a forged instrument pursuant to section 831.02, Florida Statutes (1993), without also committing a theft pursuant to section 812.014, Florida Statutes (1993);1 (2) if we have a right to look at the facts of this case in determining whether a separate crime has occurred, then Henderson, supra, is inapplicable since no money exchanged hands in the instant case; and (3) this case is indistinguishable from Watson v. State, 655 So.2d 1250 (Fla. 1st DCA 1995), where this court found that a party could not be convicted for both theft and another crime which constituted nothing more than the manner in which the theft was committed.

¶3*294I also write to note the amount of time and judicial labor which has been spent on a case where our decision has no practical effect. This case originally came to this court on an Anders brief. Appellant is a habitual offender who has been sentenced to concurrent 10-year terms on counts I and II. His guideline seoresheet indicated a recommended and permitted sentence of life. The effect of our decision is to overturn a 60-day concurrent sentence for a second-degree misdemeanor, a sentence appellant had already served at the time of sentencing. I wonder whether both justice and effective use of judicial labor would have been better served by a simple per curiam affirmance.