TERRY COLLINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terry Collins appealed his convictions for twenty-five counts arising from three robberies. The court affirmed most convictions but struck three grand theft counts as duplicative of armed robbery convictions and reversed sentences for one robbery case due to improper habitual offender sentencing without adequate notice to the defendant.
The court held that convicting and sentencing for both armed robbery and grand theft based on the same taking violates precedent and must be reversed; the grand theft convictions in all three cases must be stricken. The habitual offender sentences for the Wendy's robbery were improper because the trial court failed to ensure Collins was personally aware of habitualization as a sentencing consequence, and those sentences must be reversed and remanded.
[1] A defendant cannot be convicted of both armed robbery and grand theft for the taking of the same property during a single incident.
[2] A trial court must fulfill both prongs of Ashley v. …
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Join FLexlaw to unlock all legal intelligence“The appellant committed each robbery while armed. In each case the trial court adjudicated the appellant guilty of armed robbery and grand theft based on the taking of the same property. This was error under Sirmons v. State, 634 So.2d 153 (Fla.1994), and Gonzalez v. State, 648 So.2d 1221 (Fla. 2d DCA 1995).”
Establishes the double punishment error: convicting on both armed robbery and grand theft for identical property takings violates precedent
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Join FLexlaw to unlock all legal intelligenceCollins committed three armed robberies: two of Pizza Hut locations in East Tampa and Brandon, and one of a Wendy's in Brandon. In each robbery, Colli…
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PER CURIAM.
The appellant raises eight issues in this appeal from convictions and sentences for twenty-five counts of various crimes arising from a series of three robberies, two of Pizza Huts in East Tampa and Brandon, and one of a Wendy’s in Brandon.1 After careful consideration of the facts and law raised in each issue, we find merit in only two. The state properly conceded the errors in these two issues.
The appellant committed each robbery while armed. In each case the trial court adjudicated the appellant guilty of armed robbery and grand theft based on the taking of the same property. This was error under Sirmons v. State, 634 So. 2d 153 (Fla.1994), and Gonzalez v. State, 648 So. 2d 1221 (Fla. 2d DCA 1995).
Accordingly, the convictions for each count of grand theft in the underlying cases must be stricken. Striking these three convictions does not affect the appellant’s sentencing range so no resentencing is necessary based on this error. In sentencing the appellant for the Wendy’s robbery, after proper notice by the state of intent to seek sentencing enhancement under section 775.084, Florida Statutes (1993), the trial court imposed habitualized sentences. The state concedes that this was error because in sentencing the appellant the trial court failed to fulfill the second prong of Ashley v. State, 614 So. 2d 486 (Fla.1993), that the appellant be personally aware of the consequences of pleading when habitualization was a possibility. We therefore reverse the sentences in Circuit Court Case No. 93-12700 and remand it to the trial court to allow the appellant to withdraw his plea. Bell v. State, 624 So. 2d 821 (Fla. 2d DCA 1993).
Should the appellant plead nolo or guilty, the trial court may in its discretion resentence him under the guidelines or impose a habitual offender term if the requirements of section 775.084 and Ashley are met. State v. Jefferson, 665 So. 2d 1057 (Fla.1996); State v. Washington, 657 So. 2d 1156 (Fla. 1995); State v. Wilson, 658 So. 2d 521 (Fla.1995). In summary, we affirm all convictions except for the grand theft in each of the three underlying cases which shall be stricken on remand.
We affirm the sentences imposed for the crimes in the East Tampa and Brandon Pizza Hut robberies but reverse the sentences for the crimes stemming from the robbery of the Wendy’s Restaurant which we reverse and remand for further proceedings as outlined above.
DANAHY, A.C.J., and SCHOONOVER and FULMER, JJ., concur. . The underlying cases are Circuit Court Cases No. 93-12699 (the Brandon Pizza Hut robbery), No. 93-12700 (the Wendy’s robbery), and No. 93-12635 (the East Tampa Pizza Hut robbery).
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Bryant v. State, 712 So. 2d 781 (Fla. 2d DCA 1998)…ithdraw his plea and to proceed to trial if he wishes. If Bryant again pleads no contest or guilty, the trial court may again sentence him as a habitual felony offender if the requirements of section 775.084 and Ashley are met. See Collins v. State, 687 So. 2d 919, 920 (Fla. 2d DCA 1997). Reversed and remanded. ALTENBERND and QUINCE, JJ., concur. . Thai subsection provides: [I]l is unlawful for any person to sell, manufacture, or deliver, or possess- with intent to sell, manufacture, or deliver, a control…
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Davis v. State, 700 So. 2d 93 (Fla. 2d DCA 1997)…plea. See Ashley v. State, 614 So. 2d 486 (Fla.1993). Accordingly, we reverse the judgment and sentence. On remand, Davis must be allowed to withdraw his plea and proceed to trial. See State v. Wilson, 658 So. 2d 521 (Fla.1995); Collins v. State, 687 So. 2d 919 (Fla. 2d DCA 1997). If Davis again elects to enter a plea agreement, the trial court may in its discretion sentence Davis under the guidelines or sentence him as a habitual offender once the requirements of Ashley1 are met. See Wilson; Collins. R…
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Thompson v. State, 706 So. 2d 1361 (Fla. 2d DCA 1998)…no contest or guilty, the trial court may in its discretion resentence him under the guidelines or impose a habitual felony offender sentence if the requirements of section 775.084 and Ashley are met. See Wilson, 658 So. 2d at 523; Collins v. State, 687 So. 2d 919, 920 (Fla. 2d DCA 1997); Bell v. State, 624 So. 2d 821, 821-822 (Fla. 2d DCA 1993). PARKER, C.J., and PATTERSON and FULMER, JJ., concur. . The State challenges this court’s jurisdiction and asks that the following question be certified: "In matter…
Authorities Cited
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- Sirmons v. State, 634 So. 2d 153 (Fla. 1994)
- State v. Wilson, 658 So. 2d 521 (Fla. 1995)
- Bell v. State, 624 So. 2d 821 (Fla. 2d DCA 1993)
- State v. Phaneuf, 665 So. 2d 1057 (Fla. 1996)
- State v. Jefferson, 665 So. 2d 1057 (Fla. 1996)
- State v. Washington, 657 So. 2d 1156 (Fla. 1995)
- Gonzalez v. State, 648 So. 2d 1221 (Fla. 2d DCA 1995)