JERRY L. ROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A sentence computed under the guidelines and including points for both grand theft and fraudulent use of a credit card arising from a single transaction contravenes section 775.021(4)(b)(2), Florida Statutes (1993).
[1] A sentence computed under sentencing guidelines that includes points for both grand theft and fraudulent use of a credit card arising from a single transaction contravene…
[2] When a credit card offense and grand theft arise from a single transaction, they may be considered degrees of the same offense for sentencing purposes.
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Join FLexlaw to unlock all legal intelligenceJerry L. Ross was convicted of fraudulent use of a credit card and grand theft, arising from a single transaction. He filed a motion to correct an ill…
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PER CURIAM.
Jerry L. Ross appeals the summary denial of his motion to correct an illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Ross’s sentence, which was computed under the sentencing guidelines and included points for both grand theft and fraudulent use of a credit card, is in contravention of section 775.021(4)(b)(2), Florida Statutes (1993), we must reverse.
According to the trial court’s order denying relief, Ross’s convictions for fraudulent use of a credit card, in violation of section 817.61, Florida Statutes (1991), and grand theft, in violation of section 812.014(2)(c)(l), Florida Statutes (1991), arose out a single transaction. Because section 817.61 contains a monetary element, this case is controlled by State v. McDonald, 690 So. 2d 1317 (Fla. 2d DCA 1997), in which this court affirmed a trial court order dismissing a grand theft charge. In McDonald, the defendant was convicted of credit card fraud by a person authorized to provide goods or services, a violation of section 817.62, Florida Statutes (1993). Subsequent to this conviction, the State charged the defendant with grand theft, in violation of section 812.014(2)(c)(l), Florida Statutes (1993), based on the same actions that resulted in the first conviction. The defendant moved to dismiss this charge, and the motion was granted.
This court found in McDonald that the credit card offense and grand theft were degrees of the same offense. The court applied section 775.021(4) (b) (2), Florida Statutes (1993), which carves out exceptions to the legislative fiat that an individual can be convicted and sentenced for separate offenses when the individual has committed an act which constitutes more than one offense. Id. at 1318. Accordingly, the statute prohibited the State from prosecuting the credit card offense. Id. at 1319.
The facts of McDonald&re analogous to this case. Consequently, the trial court’s order is reversed; Ross’s conviction for credit card fraud is vacated; and Ross must be resentenced with a new score-sheet.
PATTERSON, C.J., and CAMPBELL and DAVIS, JJ., Concur.
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Coughlin v. State, 932 So. 2d 1224 (Fla. 2d DCA 2006)…ummary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s order denying all three of Coughlin’s claims. However, we write to recede from Ross v. State, 760 So. 2d 214 (Fla. 2d DCA 2000), insofar as it permits double jeopardy challenges to convictions under rule 3.800(a). Coughlin entered an open plea of no contest to attempted first-degree murder, attempted felony murder, robbery with a deadly weapon, and fleein…
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Gorday v. State, 907 So. 2d 640 (Fla. 3d DCA 2005)…CA 2003) (because illegally obtaining property through use of forged credit card and grand theft are degrees of the same offense, appellant’s conviction for grant theft vacated and conviction for fraudulent use of credit card upheld); Ross v. State, 760 So. 2d 214 (Fla. 2d DCA 2000)(same); Junior v. State, 763 So. 2d 1056 (Fla. 4th DCA 1999)(dual convictions for strong armed robbery and grand theft based on the taking of the same property cannot stand); State v. McDonald, 690 So. 2d 1317 (Fla. 2d DCA 1997)(pr…
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Riley v. State, 854 So. 2d 807 (Fla. 1st DCA 2003)…6, 2002, the trial court sentenced Appellant to concurrent two year state prison sentences on all counts, with credit for one day served, followed by three years’ probation. We reverse and remand for resentencing. As in this case, in Ross v. State, 760 So. 2d 214 (Fla. 2d DCA 2000), the defendant was sentenced to fraudulent use of a credit card and grand theft. In Ross, the Second District ruled: According to the trial court’s order denying relief, Ross’s convictions for fraud [*808] ulent use of a credit c…
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- State v. McDONALD, 690 So. 2d 1317 (Fla. 2d DCA 1997)