In Blackmon, the defendant was charged with theft and dealing in stolen property after selling steel bars that had been stolen from a workshop. The trial court did not instruct the jury that it could only return a guilty verdict on one of the counts, and the defendant was convicted of both crimes. The defendant appealed the convictions, and contended that the failure to provide the proper instruction required a new trial. The state conceded that the trial court committed fundamental error by failing to instruct the jury that it could only render a guilty verdict on one count, but argued that the district court should vacate only the lesser offense. The First District Court of Appeal sided with the majority of districts and concluded that where a finder of fact found both crimes, the proper remedy would be to vacate the lesser charge. Blackmon v. State, 58 So.3d 343 (Fla. 1st DCA 2011).
The Supreme Court affirmed the First DCA, relying heavily on the fact that the defendant failed to request the proper jury instruction or otherwise argue at the trial level that the jury could not convict on both counts. As a result of that failure, the Court found that although the trial court committed error by not providing appropriate jury instructions, the defendant could not demonstrate that the error was so fundamental as to require a new trial.
The relevant charges in Williams were similar to those in Blackmon; the defendant was charged with both theft and dealing with stolen property. Unlike Blackmon, however, the defendant in Williams requested a clear instruction to the jury that it could only return a guilty verdict on one of those counts. The trial court refused to do so, instead telling the defense that it could address the issue by motion after the verdicts were rendered. The jury returned a guilty verdict on both counts. The defense then requested the more serious dealing in stolen property conviction be dismissed; the trial court vacated the lesser charge of theft instead. The Second District Court affirmed the trial court and held that a new trial was not necessary, though it expressly recognized conflict with the Fourth District and certified the matter as one of great public importance. Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011).
The Court distinguished Williams from Blackmon on the basis of Williams’ request for proper jury instructions. Since Williams made the request at trial for instructions at trial, on appeal the state had the burden of demonstrating that the error was not fundamental, or that “there was no reasonable possibility that the error contributed to the conviction.” Ibar v. State, 938 So.2d 451, 466 (Fla. 2006) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986)). This it could not do, ruled the Court, because with proper jury instructions a jury could have found Williams not guilty of the more serious dealing in stolen property charge. The defendant would be entitled to a new trial on those two counts.
To address the confusion relating to this issue that has appeared in all districts, the Court authorized for publication and use on an interim basis instruction 14.2 of the Standard Jury Instructions in Criminal Cases (Dealing in Stolen Property (Fencing)). In Re: Standard Jury Instructions in Criminal Cases – Instruction 14.2 (SC12-1940). The instructions require trial courts to provide instructions to juries that they may not find a defendant guilty of both theft and dealing in stolen goods based one course of conduct. If the jury could find a defendant guilty of both, the jury is required to determine if the defendant is more of a “common thief,” i.e. one who intended to appropriate the stolen property for his own use, or a “trafficker,” one who intended to traffic in the stolen property. Based on that determination, the jury would then return a guilty verdict for either theft or dealing in stolen property.