MICHAEL A. KRAUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant may raise a double jeopardy argument via a motion for post-conviction relief, even if the plea was entered prior to relevant case law.
Michael Kraus pleaded guilty to multiple charges, including two counts of manslaughter stemming from a single death. He filed a motion for post-convic…
The full statement of facts, procedural history, and disposition for this case are member content.
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RYDER, Acting Chief Judge.
Michael Kraus appeals the summary denial of his motion for post-conviction relief. We reverse.
In 1984, Kraus pleaded guilty to a four-count information and received a prison sentence totaling ten years. Among the charges were manslaughter by intoxicated driver, section 316.1931(2), Florida Statutes (1983), and manslaughter by culpable negligence, section 782.07, Florida Statutes (1983). In his motion Kraus alleged that the two counts of manslaughter stemmed from a single death, and thus that multiple convictions and sentences are impermissible. If these allegations are true, Kraus is entitled to relief. Houser v. State, 474 So. 2d 1193 (Fla.1985). State v. Gibron, 478 So. 2d 475 (Fla. 2d DCA 1985). Despite Kraus’ plea (entered prior to the Houser and Gibron decisions), which was not appealed, this double jeopardy argument may properly be raised via a motion for post-conviction relief. Cantrell v. State, 405 So. 2d 986 (Fla. 1st DCA 1981), rev’d, on other grounds, 417 So. 2d 260 (Fla.1982).
We remand this case to the trial court for further proceedings consistent with this opinion. If the trial court finds that Kraus’ allegations are true, it should vacate the conviction and sentence for one of the two manslaughter charges. Since the sentence imposed in this case appears to have been imposed under the guidelines, the trial court also should determine whether resentencing on the remaining charge is appropriate. If, on the other hand, the trial court again denies the motion it should support its denial with sufficient portions of the record to demonstrate that Kraus is not entitled to the relief he seeks. Any party aggrieved by the subsequent actions of the trial court must file a notice of appeal within thirty days to obtain further appellate review.
Reversed.
SCHOONOVER and HALL, JJ., concur.
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Citator
Cited By
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Glenn v. State, 537 So. 2d 611 (Fla. 2d DCA 1988)…was nothing in the supreme court’s decision in Hall which would apply the holding retroactively or provide that dual convictions for a single act are fundamental error. Harris appears to be in conflict with this court’s decision in Kraus v. State, 491 So. 2d 1278 (Fla. 2d DCA 1986). In 1984, Kraus had pleaded guilty to charges of manslaughter by intoxicated driver and manslaughter by culpable negligence, both of which stemmed from a single death. This court observed that a double jeopardy argument may be rai…
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Mac Brown v. State, 516 So. 2d 1079 (Fla. 2d DCA 1987)…e same facts. It was alleged that counsel’s failure to object or raise this issue resulted in defendant being placed in double jeopardy for the same offense. If these allegations are true, the defendant may be entitled to relief. See Kraus v. State, 491 So. 2d 1278 (Fla. 2d DCA 1986). The trial court erred in finding defendant’s claim to be without merit on the basis that “each offense occurred in a different venue.” Section 910.11(2), Florida Statutes (1985), provides: “When a person may be tried for an offen…
Authorities Cited
- Ramsey v. State, 474 So. 2d 1193 (Fla. 1985)
- Houser v. State, 474 So. 2d 1193 (Fla. 1985)
- State v. Cantrell, 417 So. 2d 260 (Fla. 1982)
- State v. Gibron, 478 So. 2d 475 (Fla. 2d DCA 1985)
- Cantrell v. State, 405 So. 2d 986 (Fla. 1st DCA 1981)