Opinion
No. 3D00-676.
Opinion filed December 6, 2000.
An Appeal from the Circuit Court for Dade County, Thomas M. Carney, Judge, Lower Tribunal No. 98-33629.
Reversed and remanded.
Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
Robert A. Butterworth, Attorney General, and Gary K. Milligan, Assistant Attorney General, for appellee.
Before Schwartz, C.J., and Levy and Sorondo, JJ.
Arnold L. Cleveland ("the defendant") appeals his conviction and sentence for Grand Theft, claiming that the trial court erred in refusing to instruct the jury on Petit Theft, a lesser included offense of the crime charged. We agree and reverse for the following reasons.
The defendant was arrested and charged by information with Armed Robbery. At trial, the victim testified that a gold chain and ring were taken from him by the defendant. The victim testified that he thought the jewelry was worth approximately $800. However, on cross examination by defense counsel, the victim admitted that this was just an estimate as he did not remember purchasing the jewelry and he did not know how much the jewelry weighed. No other evidence of the jewelry's value was introduced at trial.
At the charge conference, the defendant sought jury instructions for lesser included offenses of Armed Robbery, including Petit Theft. The trial court denied the defendant's request for a Petit Theft instruction, choosing instead to only instruct the jury on Grand Theft on the basis that it was unrefuted that the jewelry was valued above $300. The jury convicted the defendant of Grand Theft and he was sentenced accordingly. This appeal ensued.
Based on the testimony in evidence, we find that the defendant was entitled to a jury instruction on Petit Theft. The victim clearly indicated that his valuation of the jewelry was merely an "estimate"; hence, there was an adequate jury question as to whether the jewelry's value exceeded $300. On these facts, we find that the trial court erred by not giving the requested instruction for Petit Theft, a lesser included offense of Armed Robbery. Accordingly, we reverse the defendant's conviction and sentence and remand this case for a New Trial.
In light of the foregoing, the other issues raised by the defendant on this appeal need not be discussed herein.