MARSHAL: PLEASE RISE. HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF THE GREAT STATE OF FLORIDA IS NOW SESSIO N. ALL W HO HAVE CAUSE TO PLEA, DRAW NEAR, GIVE ATTENTIONAND YOU YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES , THE GREAT STATE OF FLORIDAAND THIS HONORABLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT.PLEASE BE SEATED.

CHIEF JUSTICE: GOOD MORNING AND WELCOME TO THE FLORIDA SUPREME COURT.I WOULD LIKE TO WELCOME THE GROUP OF EIGHTH GRADERS THAT ARE HERE TO DAY F ROM FOREST LAKE EDUCATION C ENTER , AND THEIR TEACHE RS. WE THAN K YOU FOR COMING AND SHOWING AN INTEREST IN THE JUDICIAL BRANCH , ESPECIALLY IT BEING LAW WEEK. WE W ILL CALL THE F IRST CA SE, AND THE FI RST CASE IS KELSO VERSUS THE STATE OF FLORIDA.

MAY IT PL EASE THE COURT. MY NAME IS TATJANA OSTAPOFF. I AM THE ASSISTANT PUBLIC DEFENDER IN WEST PALM BE ACH REPRESENTING PATRICK KELSO. THIS CASE A ROSE FROM A BURGLARY D U RING W HICH PROPERTY WAS TAKEN FROM THE VICTIM AND $21,000 OF FIREARMS AND AS RESULT OF THAT, MR . KE LSO WAS CONVICTED OF TWO COUNTS OF GRAND THEFT, ONE FOR $21,000 AND ONE COUNT FOR THE FIREARMS.

JUSTICE: NOW , THE STATE BASICALLY I S TELLING US , I THINK IN THIS CASE , THAT BECAUSE WE HAVE A FIREARM , IT SOUTH SIDE THE NO RMAL ANALYSIS, AND THAT THERE FORWE NE ED TO THE L OOK AT 775 , AND THAT THE STATUTE ITSELF JUST TELLS US THAT A FIRE ARM IS INVOLVED , T HAT THAT IS A SEPARATE OFFE NSE , AND NO M ATTER WHAT .

YEAH. I THINK THAT ARGUMENT FAILS ON THIS GR OUND . THE ANALYSIS THAT THIS COURT ENGAGED IN IN GRAPPIN WAS THE APPLIED R ULES OF STATUTORY CONSTRUCTION, W HICH THE COURT APPLIES WHEN THE STATUT E IS UNCLEAR O R THE INTE NT IS UNCLEAR FROM THE LEGISLATURE. IT WAS A AN ANALYSIS WHERETHEY RELIED ON THE AR TICLE A , FIREARMS, A S OPPOSED TO ANY. B UT THAT WAS AN APPLICATION OF STATUTORY CONSTRUCTION. WHAT WE HAVE HERE IS THE EXPRESS TERM S OF THE LEGISLATURE , W H ICH SAYS, WITHOUT ANY R OO M FOR AMBIGUITY , THAT IT IS AN EXCEPTION TO THE GENERAL RULE THAT MULTIPLE CONVICTIONS ARE ALLOWED , E VEN WHEN THER E IS A S INGLE CRIMINAL TRANSACTION, WHERE OFFENSES ARE DEGREES OF THE SAME OFFENSE AS PROVIDED BYSTATUTE. THERE ISN 'T ANY DOUBT , THERE REALLY CAN' T BE ANY DO UBT THAT IS THE STATUTE , AND THEWAY IT IS LAID OUT , DIFFERENT ARTICLES , DIFFERENT PROPERTIES THATCAN BE STOLEN ARE DESIGNATED AS DEGREES OF THEFT.

JUST ICE: LET'S ADDRESS. THAT HOW WO ULD YOU DEFINE DEGREE OF CRIME? FOR EXAMPLE IF I LOOKED AT BLACKS LAW DICTIONARY , IT SAYS DEGREE OF CRIME USED IN AN OFFENSE , A TERM SI MILAR TO CONDUCT THAT IS PUNISHED TO A GR EAT ERROR LE SSER EXTENT, DEPENDING ON EXISTENCE OF ONE OR MORE FACTORS , A DIVISION OF CHRCHX OF ONE SPECIFIC -- OR CLASSICS OF ONE SPECIFIC -- CLASSIFICATION OF ONE SPECIFIC CRIME OR GRADES OF GUILT. IF YOU GO B ACK TO OUR CASE LAW BACK T O THE 18 00s , WHEN THE TERM "DEGREE OF CRIM E" IS USED IT SPEAKS OF DIFFERENT GRADES OR LE VELS , DEGREES OF PUNISHMENT, SO HOW DOES THAT HISTORY AND THIS DEFINITION FIT WITH YOUR ARGUMENT IN THE THEFT STATUTE?

THE LEGISLATURE HA D, IN THE THEFT STATUTE, SAYS THEY D EFINE FIRST-DEGREE GRAND THEFT , SECOND-DEGREE GRAND THEFT , THIRD-DEGREE GRAND THEFT.THERE ARE DIFFERENT KINDS OF THIRD-DEGREE GRAND THEFT , DEPENDING ON THE PROPERTY TAKEN , AND THEY ARE ALLDEGREES OF THEFT BUT THE SAME OFFENSE OF T HEFT , AND THE N YOU GET EVEN DOWN TO PETTY THEFT, SO THAT THE LEGISLATURE HAS US ED, I THINK , EX ACTLY THE SAME DEFINITION .

JUS TICE: SO IF YOU HAVE THEFT OF PROP ERTY , 300-TO-5,000 AND YOU HAVE THEFT AFTER FIREARM.

YES.

JUSTICE: ARE YOU SAYING THOSE ARE THE SAME DEGREE?

THEY ARE THE SAME DEGREE. THEY ARE THE SAME DEGR EE.

CHIEF JUSTICE: DID YOUSAY ARE OR ARE N O T?

THEY ARE THE SAME DEGREE.

JUSTICE: CAN YOU BE CONVICTED OF B OTH OF TH OSE?

NO.

JUSTICE: YOU CAN NOT BE CONVICTED OF HAVING A FIREARM AND STEAL ING AWHEEL.IF YOU STEAL A FIREARM AND YOU STEAL A WHEEL , B OTH OF WHICH ARE L ISTED UNDER THETHIRD DEGREE THEFT STATUTE.

THAT'S RIGHT.

JUSTICE: YOU CANNOT BE CONVICTED OF STEALING BOTH OF THOSE KINDS OF PROPERTY?

NO. THOSE ARE ALTERNATE WAYS OF COMMITTING THE SAME CRIME OF THIRD-DEGREE GRAND THEFT. SO THE LEGISLATURE HAS STATED THAT IF THERE ARE DEGREES OF THE SAME UNDERLYING OFFENSE OF THEFT , THEN YOU CAN ONLY HAVE ONE CONVICTION.

JUSTICE: WELL , WHAT DO YOU THINK IS THE PURPOSE OF ALL O F THESE SEVEN , E IGHT , NINE , TEN OR 12 DIF FERENT ITEMS THAT ARE L I STED UNDER THE GRAND THEFT STATUTE , SO IF YOU STEAL MULTIPLE S OF THOSE , YOU ARE ST ILL ONLY GUILTY, YOU YOU ARE SAYING , OF ONE-THIRD DEGREE GRAND THEFT.

THAT'S RIGHT. AND THAT'S RIGHT. AND I DON'T KNOW , THEPURPOSE ON --

JUSTICE: YOU BE LIEVE THAT IS BE CAUSE OF 7 75?

YES . BECAUSE THAT IS WHAT 775SAYS. AND THE PU RPOSE OF HAVING ALL THESE ALTERNATIVE WAYS OF COMMITTING GRAND THEFT THIRD-DEGREE , IS S O THAT , FOR INSTANCE, A FIREARM , THE STATE DOESN'T HAVE TO SHOW THE VALUE OF THE FIREARM IS OVER $300.

JUSTICE: SO IF WE ACCEPTYOUR ARGUMENT , REALLY WHATYOU ARE READING THIS STATUTE TO SAY IS OFFENSES WHICH ARE THE SAME DEGREE --

NO.

JUSTICE: -- AS PROVIDED BY STATUTE.

THE STATUTE DOESN'T SAY SAME DEGREE , IT SAYS DEGREES OF OFFENSE. OFF ENSES , RIGHT, SO YOU COULDN'T GET CONVICTIONS S EITHER OF BOTH SECOND-DEGREETHEFT AND THIR D-DEGREE THEFT.THE REASON FOR THAT --

JUSTICE: WHAT ABOUT TWO THIRD-DEGREE THEFTS?

YOU CAN'T, AND AC TUALLYTHE DISTRICT COURTS HAVE BEEN V ERY STRAIGHTFORWARD ON THAT , THAT YOU CAN'T GET CONVICTIONS OF TWO CRIMES WHICH ARE THE SAME DEGREE. THE REASON FOR THIS IS THE THEFT TAKING, WHICH IS THE CORE OF THE THEFT OFFENSE , IS NOT NECESSARILY, IN FACT HARDLY EVER A DISCREET , A DISCREET ACTION.IN OTHER WO RDS , I F YOU TAKE FROM A STORE , LET'S SAY , TENSHIRTS THAT ARE E ACH WORTH $30, THAT IS NOT AND HAS N EVER BEEN VIEWED A S TEN SEPARATE TAK INGS OF A P ETTY THEFT SHIRT .

JUSTICE: THE DIFF ERENCE BETWEEN THAT AND THIS SITUATION IS THE STATUTETALKS IN TERMS OF PROPERTY V ALUED AT $300 OR MORE BUTLESS THAN $ 5,000 AND 5,000 BUT LESS THAN TEN , LIKETHAT.

YES.

JUSTICE: AND THEN IT TALKS ABOUT SPECIFIC ITEMS OF PROPERTY , A FIREARM , AMOIK, A FIRE EXING IT -- AMOTOR VEHICLE, A FIRE EXTINGUISHER, THOSE K I NDS OF THINGS, WHICH IT S EEMS WAS THE LEGISLATURE'S INTENT TO FALL OUTS IDE OF SIMPLY OTHER P ROPERTY VALUED AT A CERTAIN AMOUNT.

BUT THAT RULE, THE REAS ONYOU HAVE BEEN ABLE TO SAY THAT IS BECAUSE THAT IS THE RULE OF STATUTORY CONSTRUCTION, WHICH YOU EMPLOYEE IF IT I S NOT -- WHICH YOU EMPLOY IF IT IS NOT CLEAR, A AND IT IS NOT CLEAR FROM THE STATUTE.

JUSTICE: DO YOU AGREE THAT WE ONLY APPLY THE STATUTE OF STATUTORY CONSTRUCTION, IF THE UNDERLYING OFF HE WA NTS STATUTE ISN'T CLEAR -- IF THE UNDERLYING OFFENSE STATUTE ISN'T CLEAR?

YES.

JUSTICE: WH Y IS IT UNCLEAR IN THE STATUTE, THEN , THAT THE LEGISLATURE INTENDED TO PUNISH CRIMES COMMITED FOR THEFTS OF C ERTAIN TICIZED ITEMS OF PROPERTY -- C ERTAIN PARTICULAR IZED ITEMS OF PROPERTY VE RSUS GENERALIZED ITEMS OF PROPERTY?

THIS COURT IN GRAPPIN HAD TO DISCUSS THAT AND IT STRUGGLED , I THINK M IGHTLY WITH THAT IS SUE, AS TO THAT ISSUE , WHERE THE LEGISLATURE SAID IF YOU STEAL FOUR GUNS , THAT IS FOUR SE PARATE CRIMES OF GRAND THEFT EVEN THOUGH ALL OF THE GUNS WERE TAKENAT THE SAME TIME, AND IN ADDITION, IN THIS INSTANCE , IN THIS STATUTE , IT , THERE IS OTHER EV IDENCE OF --

JUSTICE: LET'S TALK IN TERMS OF FOUR DIFFERENT PARTICULAR IZED ITS ELMS, NOT FOUR FIREARMS , BUT -- PARTICULAR IZED ITEMS , FOUR FIREARMS , A WHAEL -- A WHEEL , AND OTHERITY EL MS. NOW , IF -- AND THE OTHER ITEMS. NOW , IF SOMEBODY STEALS ALL THE PROPERTY, IT IS ONECOUNT OF THEFT.

THAT IS THE UNDERLYING PREDICATE.THAT IS THE BASIS THAT WEHAVE TO DEAL W ITH.

CHIEF JUSTICE: THAT IS DIFFERENT. THAT IS THE CORE OFFENSE ANALYSIS, BUT YOU SAID THIS IS CLEAR WE DON'T HAVE TO GO TO ANYTHING MORE, BECAUSE IT IS CLEAR THAT WE ARE D E ALING WITH DEGREES OF THE SAME OFFENSE , AND WHETHER OR NOT YOU ARE CORRECT IS BA CK TO WHAT JUSTICE BELL SAID , WHICH IS THE FACT THAT THESE ARE THIRD-DEGREE , THEY ARE SECOND, WHAT , THIRD-DEGREE FELONIES, DOES IT MAKE ANY DIFFERENCE IF IT GOES THIRD-DEGREE, SECOND-DEGREE , THAT THOSE ARE CLEA RLY DEGREES OF THE SAME OFFENSE. YOU ARE SAYING, NO , IT DOESN'T, BUT THE LEGISLATURE DOES USE THE WORD "DEGREES" R ATHER THAN SAYING WITHIN THE SAME DEGREE.

WELL, TH EY ARE DEGREES. THEY ARE BOTH DEGREES OF THE SAME UNDERLYING OFFENSE. LET ME POINT OUT IN T HIS STATUTE, ALSO AS AN OTHER EXAMPLE OF AMBIGUITY IN THE STATUTE, HE RE YOU HAVE PROPERTY THAT IS VALUED AT $300 OR MORE BUT LESS THAN $5 HOW IT IS THIRD-DEGREE GRAND THEFT. PROPERTY VALUED AT $ -- LESS THAN $5,000, IT IS THIRD-DEGREE GRAND THEFT. PROPERTY VALUED AT MORE THAN $5,000 BUT LESS THAN 10 HOW IT IS THIRD-DEGREE GRANDTHEFT. PROPERTY VALUED AT MORE THAN $10,000 BUT LESS THAN $20,000, IT IS AGAIN THIRD-DEGREE GRAND THEFT. BUT IF YOU TAKE PROPERTY WORTH LESS THAN $5,000 , SOME IS WORTH MORE THAN 5,000 AND SOME WORTH LESS THAN 5,000 , AND THE THREE SEPARATE OFFENSES OF THIRD-DEGREE THEFT I S WHAT --

JUSTICE: HOW WAS THIS INFORMATION CHAR GED ?

THE IN FORMATION CHARGED PROPERTY WORTH OVER $ 20,000 BUT LESS THAN $100,000 , ANDIT WAS $2 1,000 , AND IT ALSO CHARGED INTERESTING LY , THEFT OF FIREARMS , PISTOLS AND R IFLES , M AN Y .

JUSTICE: NOW, FOR APERSON TO BE CONVICTED UNDER THAT CHARGE , WOU LD THE STATE HAVE TO PROVE THAT THERE WAS A TAKI NG OF A FIREARM ?

YES .

JUSTICE: WOULD THE STATEHAVE TO PROVE, IN ORDER T O PROVE THE CHARGE THAT IT WAS MORE THAN $20,000, THE STATE WOULD HAVE TO PROVE THAT THERE WAS MORE THAN $20,000 TAKEN. CORRECT?

YES. BUT INTERE STINGLY IN THIS C ASE THEY TO OK ALL THE M O NEY, ALL THE $20,000 WAS TAKENSORT O F . $5,000 WAS FO UND IN ONELOCATION. $3,000 WAS FOUND IN ONE S H OE, AND $10,000 WAS APPARENTLY IN ANOTHER SHOE, SO THE QUESTION, DID HE TAKE THE $3,000 AND ST UFF IT IN HIS POCKET? DID HE TAKE THE $5,000 AND STUFF IT IN ONE SHOE? DID HE TAKE THE $10,000 ANDSTUFF IT IN THE OTHER SHOE? WAS THAT THREE TAKINGS OR O NE? AND I THINK CLEARLY BECAUSE THE UNDERLYING TAKING HAS ALWAYS BEEN VIEWED AS AN AGGREGATE ACTION OF THEDEFENDANT. IT IS GO ING TO BE $21,000 THAT THE STATE GETS FOR SECOND-DEGREE THEFT.

JUSTICE: BUT IS THAT DIFFERENT WHEN YOU ARETALKING AB OUT SPEC IFIC ITEMSTHAT THE LEGISLATURE HAS DESIGNATED AS O PPOSEED TO AREN'T YOU TAL KING APPLES AND ORANGES WHEN YOU START TALKING ABOUT THE VALUE OF MONEY AS OP POSED T O TALKINGABOUT THE VALUE OF MONEY AND SEPARATE ITEMS ? THE VE HICLES THAT WE ARE TALKING ABOUT , IT SEEMS TO ME THAT NE ITHER OUR PR IOR DECISIONS REALLY GIVE US ANY B ASIS TO NECESSARILY GO THAT WAY, AND WE ARE TALKING ABOUT AGGREGATING FIREARMS OR THOSE THINGS , BECAUSE WE HAVE GOT TWO DIFFERENT ITEMS . WE HAVE GOT A VALUE, AND IT IS AG REED THAT IT IS NOT THE VALUE OF THE FIREARM , CORRECT?IT IS MONEY.

CORR ECT.

JUSTICE: SO WHY WOULD THAT NOT BE TREATEDDIFFERENTLY, THAT THAT IS THE LEGISLATIVE INTENT ANDTHAT WE NEED NOT EVEN LOOK TO 77 5? OR DO YOU AL WAYS LO OK AT 775, NO MATTER WHAT? THAT IS WHAT YOU ARE ARGUING.

WELL , HERE IS THE THING. LOOK AT 775 FIRST BECAUSE THAT TELLS YOU WHAT THE LEGISLATURE, THAT IS THE EXPRESSION SPECIFICALLY , OF THE LEGISLATIVE INTENT .

JUSTICE: YOU LOOK THEIR FIRST BEFORE YOU LOOK AT ANYTHING ELSE THEN.

YES, AND THEN YOU SEE , OKAY, WELL, IS THE CRIME , NOW YOU GO BACK TO THE CRIME THAT IS BEING CHAR MED , THE MULTIPLE CRIMES , OBVIOUSLY , AND YOU SEE , WE LL DO , THEY FIT INTO ANY OF THOSE EXCEPTIONS? IS IT A LESSER INCLUDED OFFENSE? IS ONE THE SAME OFFENSE STATUTORILY AS THE OTHER OR ARE THESE OFFENSES DEGREE OFFENSES?

CHIEF JUSTICE: WHY ARE YOU NOT ARGUING WHETHER THEY ARE THE SAME OFFENSE , INOTHER WORDS THE SAME CORE OFFENSE , BECAUSE IT SEEMS TOME THAT THAT IS THE ARGUMENT YOU ARE MA KING AS OPPOSED TO THE DEGREES , BECAUSE , A GAIN , YOU HAVE GOT TO S TILL, YOU KNOW , GO TO THE FACT THAT THEY ARE ALL WITHIN THE SAME DEGREE O F CRIME , NOT A GREATER CRIME AND THE N A LESSER CRIME.

RIGHT.I THINK , AND IT IS DEFINITELY A RE LATED ARGUMENT, AND THE REASON IS BECAUSE THE REASON THAT THESE DIFFERENT THEFTS ARE DEGREES, DEGREE OF OFFENSES, IS BECAUSE THE UNDERLYING OFFENSE IS THE TAKING, THE THEFT , AND SO THEY ALL HAVE , AND THIS IS JUST LEGISLATIVE SHORTHAND THIS. IS THE SAME OFFENSE. IT IS THEFT THAT WE ARE TALKING ABOUT , AND WE AREGOING TO PUNIS H IT BASED O N WHAT KIND OF PROPERTY IS TAKEN, WHAT THE J AL VAL EW IS. WE ARE GOING -- WHAT THE VALUE IS. WE ARE GOING TO PUNISH A FIREARM AS GRAND THEFT, HE HAVE TEN I T I S WORTH ABSOLUTELY NOTHING.

JUSTICE: GOING BA CK TO THE DECA DES AGO SINGLE TRANSACTION, IF YOU HAVE ONE THEFT , IT DOESN'T MATTER HOW MUCH YOU TAKE OR WHAT YOU TAKE, IT IS A SINGLE TRANSACTION, AS LONG AS IT FITS WITHIN THE L ISTING OF ITEMS UNDER THIRD-DEGREE FELONY.

YEAH.I AM DOING THAT BECAUSE THE LEGISLATURE HAS DONE THAT BY DEFINING THE SPECIFIC DEGREE OFFENSE WHICH IT HAS , AND I CAN, IF I CAN DISTINGUISH THIS FOR INSTANCE, BECAUSE ITHINK THE TAKING , THEQUALITY OF THE TAKING IS REALLY FACIAL CRUCIAL AND ITHINK THE LEGISLATE - - REALLY IS FA IRLY CRUCIAL, AND I THINK THE LEGISLATURE SAID THAT. I F YOU TAKE A CAR AWAY FROM A DRIVER IN PALM BE ACH COUNTY, YOU CAN ALS O BE PROSECUTED FOR TAKING THAT CAR WHEN YOU DRIVE IT I N INDIAN RIVER COUNTY. IT IS AN O N GOING TAKING PROCESS , AND TO AVOID PROSECUTORS FROM JUST B REAKING UP A CRIME LIKE THAT, WHICH IS BASICALLY A S INGLE TAKING INTO DISCREET LITTLE ELEMENTS, THE LEGISLATURE SAYS THESE ARE DEGREE CRIMES.WE ARE GOING TO PUNISH THE TAKING .

JUSTICE: HOW WOULD WE RELATE THAT TO THE LONG H ISTORY OF DIFFERENTIATING MURDER INTO DEGREES , IF WE ACCEPT YOUR DEFINITION OF DEGREE, HOW DOES THIS STATUTE FIT INTO THAT UNDERSTAND SOMETHING.

I THINK BECAUSE M URDER , HOMICIDE, IS NECESSARILY A DISCREET ACT. I MEAN, ONCE YOU KILL SOMEBODY, THAT PERSON IS DEAD, AND N O MATT ER WHAT YOU DO TO HIM AFTER THAT , HE IS STILL GOING TO BE DEAD, NOT ANYMORE , NOT ANY LESS SINCE FROM THE MO MENT THAT YOUKILLED HIM, SO THE HOMICIDE HAS ALWAYS BEEN, IF THERE IS ONE KILLING , THEN THERE IS ONLY ONE CONVICTION , NO M ATTER HOW MA NY DIFFERENT THEORIST STATE MA Y HAVE , AND THE STATE CAN HAVE LOTS OF DIFFERENT THEORIES.

BUT THE THEO RIES AREBROKEN DO WN INTO WHAT HAVE WE ALWAYS CALLED?

DEGREES.

JUSTICE: INTO DEGREES.

CHIEF JUSTICE: YOU ARE ASSUMING THERE IS LO GI C IN THIS DOUBLE JEOP ARDY, WHICH I ON MY YEARS ON THE B E NCH FIGURED OUT.YOU YOU ARE IN YOUR REBUTTAL.

IF THERE AREN'T ANYQUESTIONS --

JUSTICE: ONE QUESTION.

SURE.

JUSTICE: IF WE HAVE STATUTES, THE THEFT OF A FIREARM AND THEN 8 6 5 WE HAVE THE THEFT AFTER MOTORVEHICLE AND THEN WE HAVE THE THEFT OF DR UGS AND DIFFERENT STATUTES SPREAD OUT THROUGHOUT THE CO DE, WHAT WOULD BE THE ANALYSIS THERE?

I WOULD HAVE A MUCH MORE DIFFICULT ARGUMENT, MUCH MORE, BECAUSE THEN THEY WOULDN'T BE DEGREE OF THEFTS.

JUSTICE: THEY COU LD BE THE SAME DEGREE . THEY COULD BE CLASSIFIED AS A PARTICULAR F ELONY DEGREE.

YOU KNOW , I DON'T KNOW WHAT THE LEGISLATUR E IS GOING TO DO BUT IF THEY CLASSIFIED IT AS A THIRD-DEGREE THEFT BUT PUT IT IN A TO TALLY DIFFERENTSECTION , MY ARGUMENT WOULD BE MORE DIFFICULT , I THINK , AND I DON'T HAVE THAT PROBLEM OBVIOUSLY IN THIS CASE.

JUSTICE: ISN'T IT PR ETTY CLEAR THOUGH --

CHIEF JUSTICE: I WA NT TO MAKE SURE.WE ARE IN REBUTTAL T IME.

JUSTICE: BEFORE YOU SIT DOWN IT SEE MS TO ME THAT IT IS PRE TTY CLEAR THAT THE LEGISLATURE'S INTENT WAS AS TO PART ICULAR ITEMS OF PROPERTY, THE VALUE OF THEPROPERTY IS IRRELEVANT. IT DOESN'T MATTER WHETHER YOU STEAL A TO YOTA CELICA OR A CADI LLAC , YOU STOLE AMOTOR VEHICLE, AND IT IS HARD TO PUT A VALUE ON AWHEEL. WHEN YOU STEAL A WHEEL, THAT THEFT, IT IS HARD TO SAY IT IS VALUED AT $10 OR $10 MILLION.

I THINK THE P OINT IS , IF YOU STEAL ONE GUN OR IF YOU STEAL 20, YOU HAVE STILL STOLEN PROPERTY THAT MA KE S THAT CON CEPT GRAND THEFT.

JUSTICE: THAT IS WHY IMEAN YOU CAN'T LUMP THE ITEMS OF THOSE PARTICULAR IZED ITEMS OF PROPERTY WITH OTHER ITEMS THAT YOU CAN VALUE. A CHA IR, A SO FA .

I THINK THE PROBLEM IS THE STATUTE DOES NOT CR EATE SEPARATE PROSECUTIONS EVEN THOUGH IN GRAPPIN THAT I S WHAT THIS COURT TELLS US BECAUSE THE LEGISLATIVE INTENT WAS U N CLEAR AS TO WHAT IS THE LEGISLATURE 'S IDEA IN THE STAT UTE? AND I HAVE TO GO BACK T O THE PROPERTY VALUED AT "X" A MOUNT HERE AND IT IS STILL YOU GO UP STAGE AND IT IS STILL THE SAM E DEGREE O F GRAND THEFT. I DON'T THINK IT DOES CREATE DIS TINCT CRIMES PER TAKING. I THINK IT CREA TES DIFFERENT WAYS OF COMMITTING GRAND THEFT IN A TAKING. AND WHAT YOU ARE REALLY LOOKING AT IS THE TAKING. THANK YOU. GOOD MORNING . GOOD MORNING. MAY IT PLEASE THE COURT. MY NAME IS JEANINE GERMANOWICZ , AND TH ERE IS NO DOUBLE JEOPARDY . THE FOURTH DCA NEEDS TO BE AFFIRMED IN T HIS CA SE, ANDTHE REASON FOR THAT I S THE LEGISLATIVE INTENT WITHIN THE INSTITUTE IS ABSOLUTELY -- WITHIN THE STATUTE SLURKTSLY CR YSTAL CLEAR. THERE IS NO -- I S ABSOLUTELY CRYSTAL CLEAR.THE RE IS NO REASON FOR THE LEGISLATURE TO HAVE SEPARATED IT . PUNISHMENT AND CONV ICTIONS FOR B OTH CRIMES, IF THEY HAVE, THEY WOULD HAVE LUMPED IT TOGETHER.

CHIEF JUSTICE: ON THAT , I HIM SORT OF CURIOUS WHY THEY SEPARATED -- I AM SORT O F C URIOUS WHY THEY SE PARATED OUT PROPERTY VALUED AT 300OR MORE BUT LESS THAN 5 ,000 , PROPERTY VALUED AT 5, 000 BUT LESS THAN 10,000 AND PROPERTY VALUED AT 1 0,000 OR MORE BUT LESS THAN 2 0,000. YOU ARE NOT SAYING THAT, IF SOMEONE STOLE PROPERTY VALVES VALUED AT UP TO 20,000 THAT , THEY COULD BE -- PROPERTY THAT WAS VALUED A T UP TO 2 0 ,000, COULD THEY BE CHARGED WITH UP TO THREE DIFFERENT FELONIES?

NO. THE OFFENSE WITH RE GARD TO PROPERTY THAT IS DE FINED AS TO THE VALUE OF THE PROPERTY RATHER THAN THE N ATURE OF THE PROPERTY , PROPERTY LESS THAN 3,000, I AM SORRY , LESS THAN 300 OR BETWEEN 300 DOLLARS AND $500 , WHAT THEY SAID WAS PROPERTY MORE THAN $ 20,000, IF , IN FACT , THE SAME PROPERTY WAS U SED FOR BOTH ATTE MPTS TO --

JUSTICE: ISN'T THAT QUESTION REALLY ANSWERED BY SUBSECTION 4- B .1 THAT WOULD REQUIRE FROM PROOF OF THE SAME I HAD -- RE QUIRE PROO F OF THE SAME IDENTICAL ELEMENT.YOU COULDN'T SEPARATE IT OUT BECAUSE IT WOULD REQ UIRE PROOF OF THE ID ENTICAL ELEMENT .

IT IS A RED HERRING . I AM SORR Y.

JUSTICE: YOU SAID THAT THE LEGISLATIVE INTENT IS CLEAR IN THIS STATUTE. WHERE DO WE GET THAT LEGISLATIVE INTENT? WHAT IN THIS STATUTE TELLSYOU THAT THE LEGISLATURE INTENDED SEP ARATE CONVICTIONS FOR EA CH OF THESE ITEMS , EVEN UNDER THE SECOND-DEGREE GRAND THEFT STATUTE , WE HAVE COMMERCIAL CARGO , SEPA RATE FROM JUST REGULAR $20,000 , SO WHERE DO WE GET THE LEGISLATIVE INTENT THAT THAT IS WHAT WAS INTENDED? SEPARATE CONVICTIONS. ANOTHER BEST EVIDEN CE OF THE LEGISLATIVE INTENT IS THEFACT THAT THEY EVEN BO THERED TO SEPARATE OUT FIREARMS OR OTHER ITEMS L IKE FIRE EXTINGUISHER S FROM JUST REGULAR PROPERTY .

CHIEF JUSTICE: IF I TOOK OR SOM EONE NOT ME , TOOK FIVE STOP SIGNS, J UST ANY STOP SIGN, AM I CONVICTED OF FIVE SEPARATE THEFTS ? ANY STOP SIGN.

IT DEPENDS ON HOW THEY ARE , WHERE IS THE STOP SIG N. I THINK PROB ABLY IT MIGHT BE JUST ONE TAKING AS OPPOSED TO FIVE TAKINGS , BUT IT WOULD DEPEND, A LSO , O N WHETHER IT CAN B E SUFFICIENTLY SEPARATED BY TIME, P LACE , CIRCUMSTANCES .

CHIEF JUSTICE: THEY ARE ALL IN SOME BODY 'S BEYOND A REASONABLE DOUBT, FIVE STOP SIGNS OR FIVE FIRE EXTINGUISHERS.

THE DIFFERENCE BETWEEN THE FIREARM EXCEPTION AND THE FIRE EX TINGUISH ER IS IN THE GRAPPIN CASE , THE COURT DISTINGUISHED FIVE DIFFERENT TAKINGS, AND RE CENT LYAFFIRMED BY THIS COURT , WHICH ANALYZED THE , THAT YOU COULD HAVE FIVE SEPARATE TAKINGS DEPENDING ON THE LANGUAGE. I AM NOT S U RE IF I ANS WERED YOUR QUESTION.

CHIEF JUSTICE: SO YOU J UST GO BACK TO THE ANY /A , WHICH IS REALLY JUST THIS COURT'S ATTEMP T TO MAKE SOME RULES THAT WE CAN AP PLY IN SOME EQUAL MANNER , BUT I T REALLY DOESN'T GET BACK TO WHETHER LEGISLATIVELY THERE WAS AN INTENT TO HAVE SEPARATE CONVICTIONS FOR THE CRIME. CORRE CT? I ME AN, SO WHY ISN'T IT THAT THESE ARE DEGREES OF , THAT THIS IS A DEGREE CRIME AND THEREFORE IT SHOULD BE PUNISHED IN ONE CONVICTION ?

WELL , I REALLY THINK THAT REALLY, I DI DN'T GO BACK T O THAT WHOLE CORE OFFENSE THING AND IF YOU ANA LYZE THE CORE OFFENSE , YOU HAVE THEFT OF A FIRE AL ARM AND -- FIREARM AND THE SO CIAL POLICY OF FIRE ARMS, WHICH IS TO KEEP FIRE ARMS FROM BEING STO LEN , FOR PURPOSES OF OTHER THEFTS AND BY THE FACT THAT THE LEGISLATURE ROUTINELY ENHANCES POSSESSION OF A FIREARM AND USE OF A FIREARM . W ITH REGARD TO THE PROPERTY OF STOLEN MORE THAN $20, 000, THAT IS THE VALUE OF THE PROPERTY RATHER THAN THE NATURE OF THE PROPERTY BEING STOLEN, SO THAT IS THE DEGREE, THAT IS THE DIFFERENCE BETWEE N THE CORE OFFENSES, THE ONES WITHOUT THE -- ONE IS ABOUT THE TYPE OF THE PROPERTY , SON ABOUT THE NA TURE OF THE PROPERTY AND DIFFERENT -- AND ONE IS ABOUT THE NATURE OF THEPROPERTY, AND IT IS ABOUT THE NATU RE OF THE PROPERTY RATHER THAN THE VALUE , AND ACTUALLY BECAUSE OF MONETARY VALUE, YOU MIGHT HAVE ALITTLE TROUBLE TR YING T O CONVICT SOMEBODY FOR THAT U NDER THE PROPERTY, THE VALUE OF PROPERTY , THEFTSTATUTE, BUT THAT DOESN'TMEAN THAT YOU HAVEN'TCOMMITTED A CRIME , AND ITHINK THAT REALLY WAS AN EXTENSION . YOU HAVE GOT APPLES AND ORANGES , THE NATURE OF THE PROPERTY THAT IS BEINGSTOLEN.

JUSTICE: THE DEFENSETELLS US THAT W E LOOK FIRST , TO 775 AND THEN TO THE SUBSTANTIVE STATUTE, AND IF WE APPRO ACH IN THAT FA SHION , THE SE COND EX CEPTION , ALTHOUGH IT DOESN'T GET INTO A DESCRIPTION OF DEGREES, IT DOES TALK IN TE RMS OF DEGREE. THEN WE LOOK AT A SUBSTANTIVE STATUTE THAT CONTAINS DEGREES , WHY IS THAT NOT THE PROPER ANALYTICAL APPROACH?

WELL , I N THAT CASEY NEED TO MAKE IT V ERY CLEAR THAT -- IN THAT CASE , I NE ED TO MAKE IT VERY CLEAR THAT W E DON'T EVEN HAVE THE RESOURCE OF 775.021 IN THIS CASE BECAUSE 775.021 IS A BAD RULE AT THIS JU NCTION , WHERE THE LEGISLATURE 'S INTENT IS N OT CLEAR. 775.021 , IT IS OBVIOUSLY THE STATE'S POSITION THAT IN THIS CASE , THAT THE THEFT STATUTE ITSELF, IS CR YSTAL CLEAR THAT FIRE ARMS ARE T REATED SEPARATELY FROM THEFTS OF OTHER PROPERTY , NOT FIREARMS , THERE FOR WE DON'T EVEN HAVE TO LOOK AT 775.021 AT THIS PO INT . DOES THAT ADDRESS YOUR CONCERNS? JUST JUST --

JUSTICE: I THINK IT D OES. WHERE DO WE GO IF OUR ANALYSIS SAYS , YOU KNOW , BOTH OF THESE ANALYSIS CAN H AVE LOGIC AND CAN BE APPLIED . WHERE DO WE GO ? DOES THAT LE AD ONE WAY OR ANOTHER IF WE SAY THIS I S AMBIGUOUS TO THE EXTENT THAT WE DON'T KNOW.

775.021 IS AMBIGUOUS?

NO. BOTH BECAUSE OF THE ENTERPLAY OF THESE TWO. IF WE COME TO A SITUATION, WE CAN READ THE STATUTE AND IT SAYS DEGREES. THEN WE LOOK AT THE OTHER STATUTE AND IT IS DIVIDED. WHAT IS THE ANALYSIS IF WE SAY BOTH OF YOU HAVE LOGICAL POSITIONS AND IT COULD BE EXPLAINED IN EITHER WAY , WHERE DOES THAT TAKE U S ?

I AM NOT SURE I AM UNDERSTANDING YOUR QUESTION CORRECTLY.

I GUESS WHAT I AM SAYING IS THAT, IF WE FIND THAT THE TWO TOGETHER CREATE A SUFFICIENT AMBIGUITY THAT WE HAVE TO GET IN AND TRY TO DETERMINE WHAT IT MEANS , DOES THAT LEAD US ONE WAY OR ANOTHER AS TO OUR APPROACH,LOOKING AT THE SUBS TANCE FIRST OR 775 FIRST .

WELL , I THINK WE NEED TO LOOK AT THE SUBSTANTIVE STATUTE FIRST , BECAUSE OBVIOUSLY THE SPECIFIC STATUTE WITH REGA RD TO THE PARTICULAR CRIME AND 775.021IS MORE OF A GE NERAL STATUTE, SO CLEARLY YOU WOULD LOOK TO THAT STATUTE FIRST.

CHIEF JUSTICE: I WOULD HAV E AN EA SIER TIME WITH YOU SAYING THIS IS CLEAR , IF IT WASN'T THAT IS THE FIREARM WAS RIGHT AFTER A WILL , CODICIL OR OTHER TESTAMENTARY INSTRUMENT. WE F EEL SO STRONGLY AS A LEGISLATURE WHAT B FIRE ARMS THAT, WHEN A FIREARM IS -- ABOUT FIREARMS, THAT WHEN A FIREARM IS TAKEN , WE ARE ALWAYS GOING TO CHARGE AN ADDITIONAL CRIME , AND THE ANALYSIS TO ME BREAKS DO WN BECAUSE THEY USE "OR WILL , CODICIL OR OTHER TESTAMENTARY INSTRUMENT", SO IF SOMEBODY TOOK FIVE WILLS UNDER YOUR CONSTRUCTION , WE WOULD HAVE FIVE DIFFERENT CRIMES, SO IT IS REALLY THE WAY THEY HAVE MI XE D TH OSE ALL TOGETHER THAT MA KES ME WONDER HOW CLEAR THE INTENT WAS THAT THESE SHOULD BE SEPARATE CRIMES AS OP POSED TO JUSTICE CANTERO I THINK WAS SAYING THAT, THE FACTOR YOU WERE SAYING THE FACT THAT YOU EITHER LOOK AT IT BY THE NATURE OF THE PROPERTY OR THE VALUE, BUT YOU DON'T AGGREGATE THE DIFFERENT CRIMES . IT IS DIFFERENT WAYS OF LOOKING AT IT WHERE YOU DON'T WORRY ABOU T THE VALUE , IF A WILL IS T AKEN. SO DO YOU SEE , I N OTHER WORDS , HOW IS IT SO CLEAR THAT THEY INTEND T O PUN ISH THESE SEPARATELY , AS OPP OSED TO JUST MAKING SURE THAT A FIREARM IS ALWAYS PROSECUTED AS A THEFT OF THE THIRD DEGREE ?

WELL , FIRST IF YOU LOOK AT WILLS, IT IS NOT JUST WILLS. IT I S OTHER THINGS THAT S E EMTO HAVE SPEC IAL CONSIDERATION BY THELEGISLATURE.

CHIEF JUSTICE: I THINKTHAT IS WHERE I THINK IT FALLS DOWN , BECAUSE TO SAY THAT A FIREARM IS GOING TO BE IN THE SAME CATEGORY AS A FIRE EXTING UISH ERROR THE ONE THAT IS ONE -- FIRE EXTINGUISH ER, OR THE ONETHAT IS ONE OF MY FAVORITES, A COMMERCIAL LY FA RMED ANIMAL, IT SEE MS WE ARE THROWING EVERYTHING INTO THIS STATUTE .

OBVIOUSLY THESE PARTICULAR SEPARATE THINGS L IKE WILLS OR FIRE EXTINGUISH ERS , THEY OBVIOUSLY HAVE DIFFERENT SOCIAL POLICIES WHICH THE LEGISLATURE HAS DETERMINED THAT THEY BE TR EATED INDEPENDENTLY AND NOT JUST LUMPED IN WITH OTHER PROPERTY . FIRE EXTI NGUISH ER S, THEY ARE TRYING TO PREVENT A TRAGIC ACCIDENT, SUCH AS FIRES OF BUILDINGS , BECAUSE THE FIRE EXTINGUISHER IS SOMETHING THAT GOES BE YOND JUST A THEFT OF A FIRE EXTINGUISH ER AND THE MO NDAY HE TA RRY VALUE OF THE FIRE -- AND THE MONETARY VALUE OF THE FIRE EXTINGUISHER. THEY ARE TRYING TO ADDRESS THE RESULT. I THINK THEY ARE ALL LIKE THAT. IT IS NOT LIKE THEY ARE PUTING IN THE SAME THING RANDOM IN THE STATUTE. EVERY SINGL E ONE OF THESEOTHER EX CEPTION S SEEM S TO HAVE SOME SORT OF WELL-THOUGHT-OUT SOCIAL POLICY BEHIND THE M. IF YOU HAVE ANY OTHER QUESTIONS, DOES THAT ANSWER YOUR QUESTION?

CHIEF JUSTICE: I THINK THAT IS A GO OD ARGUMENT. I DON'T THINK IT THEN THERE FOR CLARIF IES THAT I T IS UNAMBIGUOUS AS TO THEINTENT. THAT IS REALLY MY CONCERN.

I THINK THE BOTTOM LINE IS YOU HAVE GOT TO LOOK AT THEFT OF PROPERTY , VALUE , IF THE LEGISLATURE HAD NOT INTENDED SPECIAL TREATMENTFOR THESE OTHER ITEMS , THEY WOULD HAVE JUST LEFT THE STATUTE AL ONE AS TO THEFT OF PROPERTY UP TO $20,000 AND L UMPED EV ERYTHING AND THEREWOULD BE NO REASON TO SEPARATE.

CHIEF JUSTICE: IF YOU TAKE A FIREARM OR YOU TAKE A WILL, IT WILL ALWAYS BE CHARGED AT A THIRD-DEGREE FELONY, W ITHOUT HAVING TO WORRY ABOUT THE VALUE. TO ME THAT MAKES A LOT OF SENSE , BUT THAT STILL DOESN'T SAY TO ME THAT , IF IT IS TAKEN AT THE SAME TIME , THAT THE IDEA IS THAT THERE ARE GOING TO BE SE VERAL DIFFERENT OFFENSES.

WELL , LET'S LOOK TO THEFTOF FIREARM . THERE ARE AN TIQUE FIRE ARMS WOR TH MORE THAN $20,000, SO I DON'T THINK THAT IS AN ARGUMENT. YOU COULD CHARGE SOMEBODY WITH THEFT OF A FIREARM , WHICH WOULD BE A THIRD-DEGREE FE LONY , AND THETHIRD DEGREE FELONY, IF THE FIREARM HAPPENED TO BE WORTHMORE THAN $20,000 , IF IT IS AN ANTIQUE , YOU COULD ALSO CHARGE THEM WITH A SECOND-DEGREE FELONY FOR THEFT OF P ROPERTY MORE THAN $20,000. YOU COULD CONVICT BECAUSE WHAT YOU HAVE IS THE SAME ACT.

JUSTICE: BUT IS N'T THE LEGISLATURE MAKING VERY DIFFERENT JUDGMENTS ? THEY DE CIDE TO INCLUDE IN ONE STATUT ORY SCHEME , A SCHEME IN THIS INST ANCE FOR EXAMPLE , FOR THEFT , ALL OF THESE VARIOUS ITEMS , INCLUDING MONEY . ALL RI GHT. AS OPPOSED TO, AND THE CLEAREST EX AMPLE THAT COMES TO MY MI ND, WOULD BE IN THE DAYS WHEN TAKING SOME ONE'S HORSE WAS CONSIDERED SO OFFENSIVE BECAUSE A HO RSE WAS SO NECESSARY TO THE FARM OR TRANSPORTATION, THAT THE LEGISLATURE MIGHT CH OOSE TO ACTUALLY HAVE A SEPARATE STATUTE O R STATUTORY SC HEME AND PROVIDE THE DE ATH PENALTY FOR THE THEFT OF A HORSE , BUT HE RE WE ARE FACED WITH THE FACT THAT THE LEGISLATURE ITSELF HAS PUT ALL THESE ITEMS I N THE ONE STATUTORY SCHEME FOR THEFT AND THEN HAS SIMILARLY PRO VIDED AN EXCEPTION WITH REFERENCE TO THE IR LEGISLATIVE INTENT ABOUT MULTIPLE CRIMES , FOR DEGREE VARIANCE OF THE SAME THEFT STATUTE , AND SO IT APP EARS TO BE A LEGISLATIVE CHOICE , AND THE LEGISLATURE IS THE ONE THAT HAS CHOSEN TO USE THIS LANGUAGE, AND HERE W E SIMPLY DON 'T HAVE A SEPARATE STATUTORY SCHEME FOR THE THEFT OF A HORSE BEFORE US, DO W E ? YOU SEE MY ANALOGY ?

I SEE YOUR ANALOGY , AND ITHINK ONE OF THE THINGS THAT YOU NEED TO CON SIDER ABOUT 7 75.021 IS REALLY AS ADDRESSED TO CASES WHERE THERE ARE THE SAME A CTS BUT DIFFERENT STATUTES , AND ITHINK THAT IF YOU HAVE EVERYTHING VALUED IN THE SAME STATUTE , IT AC TUALLY HELPS TO SHOW WHAT THE LEGISLATIVE INTENT WAS MORE CLEARLY THAN IF YOU HAVE TWO DIFFERENT STATUTES, BECAUSE IF YOU HAVE GOT TWO DIFFERENT STATUTES , YOU ARE NOT AS CLEAR ABOUT THE LEGISLATURE INTENDED TO PUNISH THOSE THEFTS STATUTES -- STATUTES SEPARATELY IF THEY ARE, IN FACT , THE SAME, DEGREES OF THE SAME OFFENSE, BUT IF YOU HAVE GOT ALL OF THESE CRIMES WITHIN THE SAME STATUTE AND SPECIFICALLY SEPARATED OUT FROM EACH O THER, THEN YOU HAVE A M UCH CLEARER VIEW OF THE LEGISLATION -- OF THE LEGISLATURE'S INTENT TO PUNISH SEPARATELY FOR THESE CRIMES BECAUSE THEY WERE WITHIN THE SAME STATUTE , AND , YES , THEY HAVE BEEN SEPARATED OUT.

JUSTICE: MY CONC ERN IS THAT, WITH THE EXCE PTION I N THE LEGISLATIVE INTENT TO PUNISH AS MANY CRIMES , THEY HAVE SPECIF ICALLY CR EATED THIS EXCEPTION FOR DEGREE VARIANCE OF THE SAME STATUTE , AND SO WE ARE , WE APPEAR TO BE STUC K IN A PO SITION WHERETHIS IS WHAT THE LEGISLATURE DID. THEY PUT ALL OF THESE THINGS IN THE THEFT STATUTE , AND THEN THEY MEASURED THEM BY DEGREE VARIANCE , DEPENDING ON EI THER THE VALUE OR WHAT THE ITEMS ARE. THEY DID NOT PUT THEM IN SEPARATE STATUTORY SCHEMES , INDICATING CLEARLY A SEPARATE PUNISHMENT. I MEAN, THIS IS WHAT, THIS IS THE DILEMMA IS IT NOT, THAT WE ARE FACED WITH HERE.

I UNDERSTAND THAT OFFENSES WE ARE PO INTING OU T, THE LEGISLATURE ON ABOLISHED IN '77 , '76, AND THEN THEY AMENDED THE STATUTE , NOT A RESPONSE TO GRAPPIN BUT A DIRECT RESPONSE TO ANOTHERCASE THAT MA DE IT CLEAR THAT IT CANNOT TRUMP THE SI NGLE TRANSACTION RULE, AND THEN WE AFFIRMED THE SIN GLE TRANSACTION RULE BY REPEATING AND ADDING LANGUAGE SAYING , AGAIN REAFFIRMING THE SINGLE TRANSACTION RULE IN 1988.

JUSTICE: BUT CONCEPTUALLY WE ARE NO LO NGER FACED WITH