In Florida, be it downtown Jacksonville, ritzy Ponte Vedra, old St. Augustine or anywhere else in the state, you cannot be convicted of both dealing in stolen property (“fencing”) on one hand and theft on the other. If you sell your own loot, it is considered a continuation of the thieving act, not a separate crime.
One defense attorney was not quite on the ball and did not object to the judge erroneously instructing the jury on both counts when a hoodlum jumped the fence of a contracting company, stole steel bars, and sold them. Because he jumped the fence, the theft was of the burglary variety and carried a stiff sentence. The fencing charge on the other hand carried only a nominal sentence because it was tied to the low value of the stolen merchandise.
Had the defense attorney objected, a new trial would have been likely. But an error that was not objected to will only yield a new trial if it was a “fundamental error,” one so egregious that it throws into question the validity of the whole proceeding. This includes cases, for example, where someone has been convicted but, upon review, the evidence makes it clear that no crime was committed at all.
In the case here, the Florida Supreme Court held that the error was not fundamental and it did not grant a new trial. Instead, since, after all, the defendant could not lawfully be convicted of both crimes, it threw out the lesser offense as a remedy. But remember – the fencing offense was the lesser one by several years. The offense that really mattered to the defendant on appeal, the burglary, stood, for fault of objecting to an erroneous instruction on the law.
So when you choose an attorney, choose wisely, and remember. Geeks who obsess over each word of the statute will sometimes get better results than the razzler-dazzlers of movie courtrooms.