ELIAS ROSADO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Elias Rosado appeals the denial of his motion to withdraw his guilty plea, challenging his concurrent five-year sentences for grand theft and dealing in stolen property as violating double jeopardy. The Fourth District affirmed, holding that Rosado's plea constituted a negotiated plea agreement, which waives any double jeopardy claim.
The court affirmed, holding that although Hall v. State establishes that conviction for both grand theft and dealing in stolen property may violate double jeopardy under Florida Statutes § 812.025, such a claim is waived when the conviction results from a negotiated plea agreement. Rosado's plea was a negotiation in which he obtained a benefit (avoiding habitualization) by agreeing to plead open to the court.
[1] A defendant waives a double jeopardy claim arising from dual convictions when the convictions result from a negotiated plea agreement.
[2] A plea agreement may be formed through negotiations with the judge, not solely between the prosecution and the defendant.
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“if it were a fundamental error, even fundamental errors such as double jeopardy may be waived when the dual conviction arises from a negotiated plea agreement”
Establishes the key holding that fundamental errors, including double jeopardy violations, can be waived by a negotiated plea agreement.
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Join FLexlaw to unlock all legal intelligenceRosado was charged with burglary, dealing in stolen property, and grand theft after breaking into a house, stealing a gold chain, and pawning it. At s…
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WARNER, J.
Appellant sought to withdraw his plea after he was sentenced to concurrent five-year prison terms for grand theft and dealing in stolen property. Appellant challenges the trial court’s denial of the motion claiming that adjudication and sentencing for both grand theft and dealing in stolen property violates double jeopardy and constitutes fundamental error. We affirm, concluding that appellant’s plea amounted to a plea bargain, and any double jeopardy claim was therefore waived.
Appellant was charged with burglary of a dwelling, dealing in stolen property, and grand theft. The events resulting in the charges involved appellant breaking into a house, stealing a gold chain, and then pawning it. At the sentencing hearing for a prior crime, the state noticed appellant that it would seek habitualization for the instant crimes. The judge entered into the discussions and promised that he would not habitualize appellant if he were to plea open to the court, but the judge would not be inclined to go below five years as a sentence, even though appellant was requesting an eighteen month sentence. Appellant then agreed to an open plea to the court, and the judge sentenced him to concurrent five year sentences.
After sentencing, appellant timely moved to withdraw his plea, claiming that it was entered under duress. However, at the hearing, no such proof was offered. On appeal, appellant claims for the first time that his conviction and sentence for both grand theft and dealing in stolen property violates double jeopardy, and that this issue can be raised for the first time on appeal.
While appellant relies on Hall v. State, 826 So. 2d 268, 271 (Fla.2002), for the proposition that conviction of both grand theft and dealing in stolen property violates double jeopardy, Hall is based upon a construction of section 812.025, Florida Statutes (1999), which precludes conviction for both grand theft and dealing in stolen property if they flow from one scheme. Nevertheless, if it were a fundamental error, even fundamental errors such as double jeopardy may be waived when the dual conviction arises from a negotiated plea agreement. See Novaton v. State, 634 So. 2d 607, 609 (Fla.1994). In the present case, we conclude that the plea was the result of a negotiation with the judge in which the judge agreed not to habitualize appellant if he were to plead open to the court. Thus, just as in Novaton, appellant avoided a greater prison term through ha-bitualization by agreeing to plead open to the court. He obtained what he bargained for and cannot now be heard to complain of the deal he made.
Affirmed.
GROSS and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hawkins v. State, 138 So. 3d 1196 (Fla. 2d DCA 2014)…ssue in his motion to withdraw pleas. “As a general rule, a negotiated plea and sentence precludes an appeal of convictions and sentences on double jeopardy grounds.” Long v. State, 678 So. 2d 925, 927 (Fla. 1st DCA 1996); see also Rosado v. State, 867 So. 2d 440, 442 (Fla. 4th DCA 2004) (“[Ejven fundamental errors such as double jeopardy may be waived when the dual conviction arises from a negotiated plea agreement”). “There is an exception to this general rule when (a) the plea is a general plea as disting…
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Hunsicker v. State, 881 So. 2d 1166 (Fla. 5th DCA 2004)…e jeopardy rights may be waived when a defendant enters into a negotiated plea agreement with the state for a specific sentence. See Novaton v. State, 634 So. 2d 607 (Fla.1994); Barfield v. State, 871 So. 2d 929 (Fla. 5th DCA 2004); Rosado v. State, 867 So. 2d 440, 442 (Fla. 4th DCA 2004). . See also Cruller v. State, 808 So. 2d 201, 203 (Fla.2002) (“The Double Jeopardy Clause protects criminal defendants from multiple convictions and punishments for the same offense.”); Hayes v. State, 803 So. 2d 695 (Fla.2…
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Thornton v. State, 174 So. 3d 1103 (Fla. 2d DCA 2015)…PER CURIAM. Affirmed. See Hawkins v. State, 138 So. 3d 1196, 1199 (Fla. 2d DCA 2014) (finding that a negotiated plea and sentence precluded an appeal of convictions and sentences on double jeopardy grounds); Rosado v. State, 867 So. 2d 440, 441-42 (Fla. 4th DCA 2004) (finding dual convictions of grand theft and dealing in stolen property did not violate double jeopardy where the plea was the result of a negotiation with the court). - . ALTENBERND, NORTHCUTT, and LaROSE, JJ., Concur.…
Authorities Cited
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- Hall v. State, 826 So. 2d 268 (Fla. 2002)