STATE of Florida, Petitioner, v. Rene Ramous RODRIQUEZ, Respondent, 500 So. 2d 120

BOYD, Justice. This cause is before the Court on the petition of the State of Florida for review of the decision of the district court of appeal reported as Rodriquez v. State, 443 So.2d 236 (Fla. 5th DCA 1983). The decision of the district court conflicts with decisions of this Court. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. Respondent was convicted of robbery and grand theft. The evidence showed a taking of property from the possession of another by force, thus establishing the elements of the offense of robbery.

The same taking of property also provided the evidence of guilt of the second offense of which respondent was convicted, second-degree grand theft. The district court of appeal found that grand theft was a lesser included offense of robbery and therefore held that the theft conviction could not stand. At the outset the district court conceded that, where a single act violates two criminal statutes, separate punishments for the two offenses are permissible if the legislature intends such a result. The court correctly cited Missouri v.

Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), as authority for this principle of constitutional law. However, the district court found a lack of such legislative intent here. In the instant case it is readily apparent that the Florida Legislature did not contemplate cumulative punishments in its enactment of the robbery and theft statutes under which Rodriquez was charged, where there, is only one taking of money by force. The crime here is singular — and it is robbery. 443 So.2d at 238. We find that the district court’s conclusion regarding legislative intent was in error.

At the time of the criminal incident in question, a law of the State of Florida provided as follows: Whoever, in the course of one criminal transaction or episode, commits

an act or acts constituting a violation of two or more criminal statutes, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense, excluding lesser included offenses, committed during said criminal episode, and the sentencing judge may order the sentences to be served concurrently or consecutively. 775.021(4), Fla.Stat. (1981). The district court took the view that grand theft was a lesser included offense of robbery, which would exclude it from the operation of

section 775.021(4). On this point the district court reasoned as follows: Since there was only one taking of property in the instant case, the underlying theft was a necessarily lesser included offense of the charged robbery. Once the underlying theft conviction is used to support Rodriquez’ conviction for robbery, that same theft, even in a greater degree, cannot be used for an independent, cumulative conviction and sentence — in the absence of clear legislative intent to the contrary. 443 So.2d at 239. This reasoning was erroneous for two reasons.

First, the district court erred in emphasizing what the evidence showed “in the instant case.” Second, the district court ignored the “clear legislative intent” expressed in

section 775.021(4). We find that grand theft is not a lesser included offense of robbery and that therefore the legislative intent is that there be convictions and sentences for both offenses. It is now well settled in Florida that the determination of whether one offense is a lesser included offense of another, at least for purposes of deciding whether there may be cumulative convictions based on a single factual event, is made by analysis of the statutory elements, without regard to the allegations in a particular charging document or the evidence presented at a particular trial. State v.

Baker, 456 So.2d 419 (Fla.1984); State v. Baker, 452 So.2d 927 (Fla.1984); Borges v. State, 415 So.2d 1265 (Fla.1982). A less serious offense is included in a more serious one if all of the elements required to be proven to establish the former are also required to be proven, along with more, to establish the latter. If each offense requires proof of an element that the other does not, the offenses are separate and discrete and one is not included in the other. Blockburger v. United States, 284 U.S. 299 ... [52 S.Ct. 180, 76 L.Ed. 306] (1932). Borges v. State, 415 So.2d at 1267.

A correct analysis of the statutory elements of the two crimes, as set forth in footnotes one and two above, reveals that each offense contains at least one element that the other does not. Because second-degree grand theft contains an element— that the value of the property taken must be “$100 or more, but less than $20,000”— not included among the elements of robbery as defined by statute, second-degree grand theft is not a lesser included offense of robbery. This is so notwithstanding the fact that petit theft as defined in

section 812.014 is a lesser included offense of robbery. See Hand v. State, 199 So.2d 100, 102 (Fla.1967) (larceny is “a necessarily included element of robbery”). We hold that second-degree grand theft is not a lesser included offense of robbery. If, in the course of a robbery, the robber takes property with a value of “$100 or more, but less than $20,000”, he can be convicted of both robbery and second-degree grand theft. Accordingly, the decision of the district court of appeal is quashed. The case is remanded with directions to affirm both convictions. It is so ordered.

MCDONALD, C.J., and EHRLICH, J., concur. SHAW, J., concurs specially with an opinion. ADKINS and BARKETT, JJ., dissent. OVERTON, J., dissents with an opinion. . “ ‘Robbery’ means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.” § 812.-13(1), Fla.Stat. (1981). . One commits theft who "knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent: (

a) To deprive the other person of a right to the property or a benefit therefrom, (

b) To appropriate the property to his own use or to the use of any person not entitled thereto.” § 812.014(1), Fla.Stat. (1981). If the property has a value of "$100 or more, but less than $20,000,” the offense is grand theft of the second degree. § 812.-014(2)(b)l. .