STATE OF FLORIDA, APPELLANT,
v.
JOHN ALLEN DASHER, APPELLEE
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The court held that the defendant was illegally sentenced for both petit theft and trafficking in stolen property, and the conviction for the lesser offense should be vacated.
[1] A defendant cannot be convicted of both theft and dealing in stolen property arising from the same scheme or course of conduct.
[2] A motion to correct an illegal sentence is a proper procedural vehicle to address sentencing errors.
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Join FLexlaw to unlock all legal intelligenceDasher was convicted of burglary, petit theft, trafficking in stolen property, and obstruction. He was sentenced consecutively for these offenses. He …
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W. SHARP, Judge.
The state appeals from an order granting Dasher’s motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We reverse with directions to vacate the conviction and sentence imposed for petit theft1 in the underlying case.
On March 5,1991, Dasher was convicted of burglary,2 petit theft,3 and trafficking in stolen property4 and obstruction.5 He was sentenced to seven years as an habitual offender on count I (burglary), to time served on counts II and IV (petit theft and obstruction), and fifteen years probation on count III (trafficking), to be served consecutively to count I.
He filed a motion on April 30, 1996, to correct an illegal sentence, pursuant to Florida Rule of Criminal Procedure 3.800. The trial court ruled Dasher could not be sentenced for both petit theft and trafficking in stolen property pursuant to section 812.025, Fla.Stat. (1995). That section provides:
Notwithstanding any other provision of law, a single indictment or information may, under proper circumstance, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.
Accordingly, the trial court struck the sentence Dasher had been given, for the trafficking count — fifteen years probation.
The state concedes that Dasher was improperly convicted of both petit theft and trafficking pursuant to section 812.025.6 It is clear from a review of the record that a sentencing error occurred and that Dasher was illegally sentenced. Thus, the motion filed pursuant to rule 3.800 was proper. Dasher is not barred by the two year limitation appurtenant to rule 3.850.
In this ease, the trial court should have convicted and sentenced Dasher for the more severe crime — trafficking—and dropped the lesser offense of petit theft. Dasher actually received a time-served sentence for the petit theft count (285 days). But that time served sentence was also illegal. Thus, it appears Dasher is not entitled to have the more severe criminal conviction and sentence for trafficking altered in any way. All that is required is to strike and remove the conviction and sentence for petit theft.
REVERSED and REMANDED with directions.
PETERSON, C.J., and GOSHORN, J., concur. . § 812.014(1)(a) and (2)(c), Fla.Stat. (1989).
. § 810.02(1) and (3), Fla.Stat. (1989).
. § 812.014(1)(a) and (2)(c), Fla.Stat. (1989).
. § 812.019, Fla.Stat.(1989).
. § 843.02, Fla.Stat. (1989).
. The statute, however, was passed after his 1991 conviction.
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Anderson v. State, 2 So. 3d 303 (Fla. 4th DCA 2008)…. The remedy routinely imposed under these circumstances, however, is vacating the conviction which carries the lesser sentence. Blair v. State, 667 So. 2d 834 (Fla. 4th DCA 1996); Bishop v. State, 718 So. 2d 890 (Fla. 2d DCA 1998); State v. Dasher, 687 So. 2d 916 (Fla. 5th DCA 1997). We have considered the other issues raised by appellant and find them to be without merit. We reverse and remand for the trial court to vacate the grand theft conviction. STEVENSON and TAYLOR, JJ., concur. KLEIN, J., concurs…1 / 2
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Newland v. State, 739 So. 2d 168 (Fla. 5th DCA 1999)…ft, a second-degree misdemeanor arising out of Newland’s theft and subsequent pawning of his roommate’s tools. [*169] Newland correctly contends that his dual convictions for dealing in stolen property and petit theft may not stand. State v. Dasher, 687 So. 2d 916, 917 (Fla. 5th DCA 1997); Blair v. State, 667 So. 2d 884, 841 (Fla. 4th DCA 1996), approved on other grounds, 698 So. 2d 1210 (Fla.1997). Section 812.025, Florida Statutes (1997), entitled “Charging Theft and Dealing in Stolen Property,” provides:…