                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

TYRONE RANDY JOHNSON,                  NOT FINAL UNTIL TIME EXPIRES TO
JR.,                                   FILE MOTION FOR REHEARING AND
                                       DISPOSITION THEREOF IF FILED
      Appellant,
                                       CASE NO. 1D16-5350
v.

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed October 6, 2017.

An appeal from the Circuit Court for Alachua County.
James M. Colaw, Judge.

Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney
General of the Office of the Attorney General, Tallahassee, for Appellee.



PER CURIAM.

      Appellant, Tyrone Johnson, Jr., appeals his judgment and sentence on

multiple grounds. Of his claims, we address only the trial court’s denial of his

motions for judgment of acquittal regarding the charges for grand theft auto and theft

of property. On these issues, we agree with Johnson, and reverse and remand with
instructions to vacate those convictions. The conviction for acting as bail bond agent

with suspended or revoked license is affirmed.

      Johnson’s convictions stem from his work as a bail bond agent. Johnson’s bail

bond license was revoked in 2012, so he worked alongside another agent to provide

bond premium financing for prospective clients. In April 2014, Johnson’s agency

assisted Felicia Sledge with a bond for her daughter. Ms. Sledge financed a portion

of the bond premium, securing the loan with the title to her vehicle. After several

delinquent payments and multiple unsuccessful attempts to secure payment, Johnson

and a co-worker went to re-possess Ms. Sledge’s vehicle. Johnson and his co-worker

informed police re-possession of the vehicle occurred as a result of non-payment of

a loan. At the time of re-possession, Ms. Sledge had several personal belongings in

the car. She called police to report that her car, and the contents therein, had been

stolen.

      Johnson was eventually arrested and charged with three crimes, including

grand theft auto and theft of property. Johnson’s trial counsel moved for judgment

of acquittal on all charges, arguing a lack of intent for the grand theft auto charge

and a double jeopardy violation as to the theft of property charge. The motions were

denied.




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                                   Grand Theft Auto

      The standard of review of the denial of a motion for judgment of acquittal is

de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). “A motion for judgment

of acquittal pertains to the legal sufficiency of the state’s evidence.” State v. Rivera,

719 So. 2d 335, 337 (Fla. 1st DCA 1998). “[I]n moving for a judgment of acquittal,

a defendant admits not only the facts stated in the evidence, but also every reasonable

conclusion favorable to the state that the trier of fact might fairly infer from the

evidence.” Rasley v. State, 878 So. 2d 473, 476 (Fla. 1st DCA 2004).

      Johnson argues the trial court erred in denying his motion for judgment of

acquittal regarding the charge for theft of a vehicle, as the State failed to satisfy the

required element of intent. Specific intent is an essential element of the crime of

theft. Redding v. State, 666 So. 2d 921, 922 (Fla. 1st DCA 1995). “A person who

takes possession in the good faith belief that he or she has a right to the property

lacks the requisite intent to commit theft.” Bartlett v. State, 765 So. 2d 799, 799 (Fla.

1st DCA 2000). The specific intent to commit a theft must be present at the time of

the taking. Adams v. State, 443 So. 2d 1003, 1006 (Fla. 2d DCA 1983). “Where it

clearly appears that the taking of property was consistent with honest conduct, as

where the taker honestly believes that he or she has a right to property, the taker

cannot be convicted of theft, even though the taker may have been

mistaken.” Rodriguez v. State, 396 So. 2d 798, 799 (Fla. 3d DCA 1981). A criminal

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defendant’s good faith belief that he is entitled to take possession of property is a

complete defense to theft crimes. Id. “Moreover, when a ‘taking was in the open,

with no subsequent attempt to conceal it, and there was no concealment nor denial

of such taking, but on the other hand, an express avowal thereof,’ a strong

presumption arises that the defendant had no felonious intent.” Ginn v. State, 26 So.

3d 706, 712 (Fla. 2d DCA 2010)(quoting Maddox v. State, 38 So. 2d 58, 59 (Fla.

1948)).

      In the present case, Johnson re-possessed the vehicle in broad daylight and

contacted police to report the intended re-possession as a result of non-payment of a

loan. The trial court improperly relied on: 1) a statement made by Johnson to an

officer days after the taking, in which he said he would not return the car, even if

Ms. Sledge were to pay the past due amount; and 2) on testimony that there was a

“gift” notation on the car’s title, as well as Johnson’s signature, which could indicate

Appellant’s intent to take the vehicle. Reliance on these statements was error due to

the requirement that a defendant possess the intent at the time of the taking. The

evidence presented regarding Johnson’s intent at the time of taking supports only a

conclusion that he re-possessed the car as collateral for the unpaid loan. Accordingly,

the State failed to prove that Johnson possessed the requisite intent at the time of the

re-possession to support a prima facie case for grand theft auto.




                                           4
                                    Theft of Property

      The Double Jeopardy Clause of the Florida Constitution provides that “[n]o

person shall be . . . twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const.

“A separate crime occurs only when there are separate and distinct acts of seizing

the property of another.” Moore v. State, 904 So. 2d 647, 648 (Fla. 4th DCA 2005)

(quoting Johnson v. State, 597 So. 2d 798, 799 (Fla. 1992)). “A determination of

whether double jeopardy is violated based on undisputed facts is a legal

determination; thus, this Court’s review is de novo.” State v. Drawdy, 136 So. 3d

1209, 1213 (Fla. 2014). The Florida Supreme Court has established a rule for

analyzing double jeopardy issues where the defendant is accused of taking a single

victim’s property:

      [C]ourts should look to whether there was a separation of time, place,
      or circumstances between the initial armed robbery and the subsequent
      grand theft, as those factors are objective criteria utilized to determine
      whether there are distinct and independent criminal acts or whether
      there is one continuous criminal act with a single criminal intent.

Hayes v. State, 803 So. 2d 695, 704 (Fla. 2001).

      Florida courts have continuously held that dual convictions for grand theft

auto and theft of property within the vehicle at the time of the taking violate double

jeopardy principles. See Senelus v. State, 994 So. 2d 493 (Fla. 3d DCA

2008); Holmes v. State, 923 So. 2d 557 (Fla. 1st DCA 2006); Ford v. State, 849 So.

                                            5
2d 477 (Fla. 4th DCA 2003); Mixson v. State, 857 So. 2d 362 (Fla. 1st DCA

2003); Beaudry v. State, 809 So. 2d 83 (Fla. 5th DCA 2002); Sirmons v. State, 634

So. 2d 153 (Fla. 1994).

      When the subject re-possession occurred, personal items were in the car,

inclusive of a heart monitor. In response to Johnson’s argument that the charges of

grand theft auto and grand theft of property (later reduced to petit theft) violate

double jeopardy, the State asserts the “taking” of the personal property occurred

three days after the vehicle repossession when Johnson did not allow Ms. Sledge to

collect it. In essence, although the personal belongings were inside the vehicle when

re-possessed, Johnson’s failure to return the belongings to the owner of the car after

re-possession constitutes a separate and distinct crime not flowing from the same

criminal episode. We cannot agree. There must be sufficient separation in time,

place, and circumstance between the two alleged theft offenses to avoid a double

jeopardy problem. Hayes, 803 So. 2d at 705; Mixson, 857 So. 2d at 365. Here, there

is no such separation, as one taking of the vehicle and its contents occurred. As

in Mixson, the present case will only support a conclusion of one continuous

criminal act with a single criminal intent. See Beaudry, 809 So. 2d at 84 (holding

conviction for grand theft of motor vehicle and grand theft violated double jeopardy

as there was no separation when the car contained computer equipment); Ford, 849




                                          6
So. 2d at 478 (holding charges violated double jeopardy when construction

equipment already in car at time of theft).

      REVERSED and REMANDED with instructions to vacate the convictions for

grand theft auto and theft of property, and to resentence Appellant accordingly.


WETHERELL, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR.




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