MICHAEL CONSIGLIO, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court resolved a conflict between two appellate districts regarding whether double jeopardy bars convictions and punishments for both robbery and carjacking, and addressed whether Consiglio was entitled to resentencing under pre-1995 guidelines after those guidelines were declared unconstitutional.
Double jeopardy does not bar convictions and punishments for both robbery and carjacking. Consiglio is entitled to resentencing under the pre-1995 sentencing guidelines, as his offense fell within the window period for relief under Heggs v. State, and calculation under the 1994 guidelines results in a lower sentencing range.
[1] Double jeopardy does not bar convictions and punishments for both robbery and carjacking.
[2] A defendant whose sentence was calculated under unconstitutional sentencing guidelines is entitled to resentencing under prior, constitutional guidelines if the offense o…
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Join FLexlaw to unlock all legal intelligence“In Cruller v. State, 808 So. 2d 201 (Fla.2002), this Court determined that double jeopardy does not bar convictions and punishments for robbery and carjacking.”
Establishes the Court's holding on the first issue regarding double jeopardy
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceConsiglio was convicted of carjacking, robbery, and attempted false imprisonment. He was sentenced to 78.5 months incarceration pursuant to 1995 sente…
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HARDING, J.
We have for review Consiglio v. State, 743 So. 2d 1221 (Fla. 4th DCA 1999), which expressly and directly conflicts with the opinion in Ward v. State, 730 So. 2d 728 (Fla. 1st DCA 1999), regarding whether double jeopardy bars convictions and pun ishments for robbery and carjacking. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. In Cruller v. State, 808 So. 2d 201 (Fla.2002), this Court determined that double jeopardy does not bar convictions and punishments for robbery and carjacking. Accordingly, we approve the result of the Fourth District’s decision in Consiglio concerning this issue.
We address a second issue raised by Consiglio. See, e.g., Hall v. State, 752 So. 2d 575, 578 n. 2 (Fla.2000) (“Once we have conflict jurisdiction, we have jurisdiction to decide all issues necessary to a full and final resolution.”).
Consiglio was convicted of carjacking, robbery, and attempted false imprisonment. He was sentenced to 78.5 months incarceration pursuant to the 1995 guidelines (established by chapter 95-184, Laws of Florida).
Consiglio contends that since his scoresheet was calculated under unconstitutional guidelines, he is entitled to be resentenced under the 1994 guidelines. See Heggs v. State, 759 So. 2d 620 (Fla.2000) (holding chapter 95-184, Laws of Florida, unconstitutional as violative of single subject requirement of article III, section 6, Florida Constitution, and that imposition of sentence under amendments made by chapter 95-184 was error).
Consiglio’s offense was committed on March 2, 1997, and therefore he has standing to raise a Heggs challenge. See Trapp v. State, 760 So. 2d 924, 928 (Fla.2000) (extending the window period in which defendant could obtain relief for Heggs error from October 1, 1995, to May 24, 1997).
Based on our review of the record, it appears that the calculation of Consiglio’s scoresheet under the 1994 guidelines results in a lower sentencing range than the range calculated under chapter 95-184.1 Therefore, we remand this cause for resentencing in accordance with the sentencing guidelines in effect prior to the date the unconstitutional amendments made by chapter 95-184 became effective.
It is so ordered.
WELLS, C.J., and SHAW, ANSTEAD, LEWIS, and QUINCE, JJ., concur. PARIENTE, J., concurs in part and dissents in part with an opinion.
. In its brief, the State "disagrees with the Petitioner's calculations” but acknowledges that this case should be remanded to the trial court to calculate a new scoresheet.
PARIENTE, J.,
concurring in part and dissenting in part.
I concur with the majority that Consiglio should be resentenced in accordance with the 1994 guidelines. However, I would conclude that there was a double jeopardy violation by convicting and punishing Con-siglio both for robbery and carjacking that arose out of a single forceful taking. Con-siglio robbed the victim of her keys and her wallet while the victim was outside of her truck pumping gas. Consiglio immediately thereafter stole the victim’s car. There was no separation of time, place, or circumstances between the taking of the keys and wallet and the taking of the car. Cf. Hayes v. State, 803 So. 2d 695 (Fla.2001). Therefore, for the reasons stated in Cruller v. State, 808 So. 2d 201, 204-10 (Fla.2002), I dissent from the majority’s conclusion that there was no double jeopardy violation in this case.
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Trotter v. State, 825 So. 2d 362 (Fla. 2002)…s, we authorized remand for re-sentencing in accordance with the sentencing guidelines in effect prior to the date the unconstitutional amendments made by chapter 95-184 became effective. See Heggs, 759 So. 2d at 630-31; see also Consiglio v. State, 818 So. 2d 467, 468 (Fla.2002). Although this Court has never expressly held that a resentencing under Heggs is a de novo sentencing proceeding, such a conclusion follows from the fact that the original sentence must necessarily be vacated, and the fact that we h…
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Lopez-Vazquez v. State, 931 So. 2d 231 (Fla. 5th DCA 2006)…908 So. 2d 554, 556 n. 2 (Fla. 2d DCA 2005). But here it does not matter which shooting offense is lost because both are second-degree felonies. See Ward v. State, 730 So. 2d 728 (Fla. 1st DCA 1999), abrogated on other grounds by Consiglio v. State, 818 So. 2d 467 (Fla.2002). Therefore, we will leave it to the trial court to make the choice. See McGlorthon, 908 So. 2d at 556 n. 2; Cabanela v. State, 871 So. 2d 279, 282 (Fla. 3d DCA 2004) (“[W]e remand with instructions that three of the appellant’s four convi…
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Labarbara v. State, 5 So. 3d 801 (Fla. 2d DCA 2009)…ellant’s convictions for carjacking and robbery against his claim that conviction of both violates double jeopardy, as we conclude that the evidence supports two separate acts and separate property.”), approved in part and remanded on other grounds, 818 So. 2d 467 (Fla.2002). Therefore, we affirm the judgments and sentences for robbery with a weapon in counts one and three. Accordingly, we reverse and remand for the trial court to vacate the judgment and sentence for robbery with a weapon in count two, and w…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Hayes v. State, 803 So. 2d 695 (Fla. 2001)
- Cruller v. State, 808 So. 2d 201 (Fla. 2002)
- Hall v. State of Fla. & Michael W. Moore, 752 So. 2d 575 (Fla. 2000)
- Ward v. State, 730 So. 2d 728 (Fla. 1st DCA 1999)
- Consiglio v. State, 743 So. 2d 1221 (Fla. 4th DCA 1999)