ALICE J. WANNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Alice Wanner challenged a trial court's partial denial of her postconviction relief motion. The court had vacated her grand theft convictions on double jeopardy grounds but refused to resentence her for organized fraud, instead using the vacated convictions in calculating her sentencing guidelines score. The appellate court reversed, holding that vacated convictions cannot be scored on the sentencing guidelines and that Wanner must be resentenced using a corrected scoresheet.
The trial court erred in declining to resentence appellant for organized fraud. Once grand theft convictions were vacated, they could not be scored as convictions on the sentencing guidelines scoresheet. Appellant must be resentenced for organized fraud using a corrected guidelines scoresheet that does not include the vacated grand theft offenses.
[1] A trial court errs by declining to resentence a defendant after vacating certain criminal convictions.
[2] Once criminal convictions are vacated, those offenses cannot be scored for purposes of sentencing guidelines.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Once it vacated the grand theft convictions, the trial court was precluded from scoring these offenses as convictions for purposes of the sentencing guidelines.”
Establishes the core holding that vacated convictions cannot be used in sentencing guidelines calculations
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWanner pleaded nolo contendere to one count of organized fraud and multiple counts of grand theft, receiving concurrent sentences of incarceration fol…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Vacated Conviction cases and more on FLexlaw
PER CURIAM.
The appellant, Alice Wanner, challenges the trial court’s partial denial of her motion for postconviction relief. Because we conclude that the trial court erred in declining to resentence appellant after it vacated certain criminal convictions, we reverse and remand for resentencing with a corrected guidelines sentencing scoresheet.
The appellant pleaded nolo contendere to one count of organized fraud1 and to multiple counts of various degrees of grand theft2 and was sentenced to varying concurrent terms of incarceration followed by probation. She did not appeal. Within two years of her sentencing, however, appellant filed a sworn motion for postconviction relief pursuant to Florida Rules of Criminal Procedure 3.800 and 3.850 contending that the judgments and sentences imposed for both organized fraud and grand theft violated her constitutional right to be free from double jeopardy.3 She relied on our decision in Cherry v. State, 592 So. 2d 292 (Fla. 2d DCA 1991), as well as the decision in Donovan v. State, 572 So. 2d 522 (Fla. 5th DCA 1990), to support her double jeopardy contention.
The trial court agreed with appellant’s argument and vacated her grand theft convictions and sentences.4 It declined, however, to resentence her for organized fraud because to do so would produce an “absurd result.” The trial court ruled, therefore, that the grand theft offenses could properly be factored into the appellant’s guidelines score-sheet calculation so that her punishment would be commensurate with the nature and extent of her criminal activities.
Although we are sympathetic to the predicament faced by the trial court in having to vacate appellant’s judgments and sentences for grand theft well after she pleaded nolo contendere, we must conclude that it erred in not resentencing her for organized fraud. Once it vacated the grand theft convictions, the trial court was precluded from scoring these offenses as convictions for purposes of the sentencing guidelines. See Grant v. State, 639 So. 2d 1100 (Fla. 2d DCA 1994) (absent actual convictions, charges cannot be scored on sentencing guidelines scoresheet). Furthermore, because the scoresheet used at sentencing is not part of the record, we are unable to determine whether the sentence imposed for organized fraud would still fall within the recommended sentencing range if the grand theft offenses are deleted.
Accordingly, we reverse that part of the trial court’s order declining to resentence appellant for organized fraud and remand with directions that she be resentenced using a corrected scoresheet which does not take into account the grand theft offenses vacated by the trial court.
Reversed and remanded for resentencing with directions.
DANAHY, A.C.J., and PATTERSON and LAZZARA, JJ., concur. . § 817.034(4)(a)l„ Fla.Stat. (1991).
. § 812.014(2)(a)(b)(c), Fla.Stat. (1991).
. Such a double jeopardy claim is more appropriately brought under rule 3.850 rather than rule 3.800. See Plowman v. State, 586 So. 2d 454 (Fla. 2d DCA 1991).
.The record does not reflect that the state appealed this aspect of the trial court's order.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Celeata Williamson v. State, 852 So. 2d 880 (Fla. 2d DCA 2003)…he 1994 guidelines were in effect. Therefore, Williamson should be resentenced under the 1994 guidelines. On remand, the trial court is precluded from scoring the grand theft offenses as convictions for purposes of resentencing. See Wanner v. State, 667 So. 2d 427 (Fla. 2d DCA 1996). Affirmed in part, vacated in part, reversed in part, and remanded for resen-tencing with directions. FULMER and DAVIS, JJ., concur. . Because Williamson’s offense is a true continuing offense, the date of her last overt ac…
-
Wanner v. State of Fla. & SouthTrust Bank of Fla., N.A., 746 So. 2d 478 (Fla. 2d DCA 1999)…he restitution order. No appeal from the sentencing was taken although she did appeal from a subsequent denial of a motion for post-conviction relief based on violations of double jeopardy. We reversed and remanded for resentencing, Wanner v. State, 667 So. 2d 427 (Fla. 2d DCA 1996). The order of restitution was never an issue in these prior proceedings. In civil litigation initiated by several of the victimized condominium associations against SouthTrust and Wanner, a summary final judgment was entered that…
-
Damon v. State, 718 So. 2d 305 (Fla. 2d DCA 1998)…acknowledged the same year that it was issued “no longer represents the law.” Davis v. State, 590 So. 2d 496, 497 (Fla. 3d DCA 1991). The double jeopardy claim Damon raises is cognizable in a rule 3.850 collateral proceeding. See Wanner v. State, 667 So. 2d 427 (Fla. 2d DCA 1996). We reverse and direct the trial court to reconsider Damon’s motion in light of Steams and its progeny, including Gaber v. State, 684 So. 2d 189 (Fla.1996), and M.P. v. State, 682 So. 2d 79 (Fla.1996), which may suggest different…
Authorities Cited
- Donovan v. State, 572 So. 2d 522 (Fla. 5th DCA 1990)
- Plowman v. State, 586 So. 2d 454 (Fla. 2d DCA 1991)
- Cherry v. State, 592 So. 2d 292 (Fla. 2d DCA 1991)
- Grant v. State, 639 So. 2d 1100 (Fla. 2d DCA 1994)