RENE CORVO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the conviction for dealing in stolen property but reversed the conviction for third-degree grand theft, finding the latter to be an illegal dual conviction.
The court held that the claim of ineffective assistance of trial counsel was not cognizable on direct appeal, but reversed the conviction for grand theft as an illegal dual conviction.
[1] Claims of ineffective assistance of trial counsel are generally not cognizable on direct appeal unless the incompetence and prejudice are apparent on the face of the reco…
[2] A double jeopardy violation occurs when convictions for both dealing in stolen property and grand theft arise from the same scheme or course of conduct.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of third-degree grand theft and dealing in stolen property after being acquitted of burglary. He admitted pawning jewelry …
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SUAREZ, J.
Rene Corvo (the “Defendant”) appeals his convictions for third-degree grand theft and dealing in stolen property. We affirm his conviction for dealing in stolen property and reverse his conviction and sentence for grand theft.
The Defendant contends that he should receive a new trial because trial counsel was ineffective for making an inaccurate stipulation at trial. He also asserts that his convictions for both grand theft and dealing in stolen property are illegal dual convictions because they relate to the same property.
The State argues that the Defendant’s claim of ineffective assistance of trial counsel is not cognizable on direct appeal, and that the dual convictions do not constitute fundamental error. The Defendant was charged with burglary of an unoccupied dwelling, third-de gree grand theft, and dealing in stolen property. He allegedly broke into the victim’s home and took items including jewelry, conga drums, and electronic equipment. The Defendant denied that he was in--volved in the burglary but admitted that he pawned the victim’s jewelry as a favor to a friend shortly after the burglary. His fingerprints appear on the pawn slip. The police recovered the stolen conga drums from the apartment where the Defendant was arrested a few days after the burglary and pawning of the jewelry.
The jury acquitted the Defendant of burglary and convicted him of the grand theft and dealing in stolen property charges.
The trial court sentenced the Defendant as a habitual offender to thirty years imprisonment for the dealing in stolen property, and a concurrent ten-year term for the grand theft. The Defendant challenges his convictions in this belated appeal.
First, we agree with the State that the Defendant’s claim of ineffective assistance of trial counsel is not cognizable on this direct appeal. With rare exceptions, ineffective assistance of trial counsel claims should be raised on a motion for post conviction relief. Gore v. State, 784 So. 2d 418, 438 (Fla.2001). “Only in cases where the incompetence is apparent on the face of the record and prejudice to the defendant-is obvious do appellate-courts address this -issue on direct appeal.” McMullen v. State, 876 So. 2d 589 (Fla. 5th DCA 2004).
In the instant case, it is not apparent on the face of the record that trial counsel was ineffective. Counsel mistakenly agreed to stipulate that the Defendant’s fingerprints were found inside the victim’s burglarized home. Counsel recognized her error almost immediately and with-1 drew the stipulation. Nor is it obvious that the Defendant was prejudiced by counsel’s error. As stated above, counsel corrected herself almost immediately.
Furthermore, the jury acquitted the Defendant on the burglary charge to which the erroneous stipulation pertained. As the record reveals no error which resulted in obvious prejudice to the Defendant, this claim of ineffective assistance of trial counsel is not cognizable on this direct appeal. The Defendant may bring this claim on a motion for post conviction relief. See White v. State, 850 So. 2d 624 (Fla. 2d DCA 2003) (affirming without prejudice to the defendant’s right to file a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850).
Second, we agree with the Defendant that his conviction for grand theft should be reversed. Convictions for both dealing in stolen property and grand theft violate double jeopardy when the convictions arise “in connection with one scheme or course of conduct....” § 812.025, Fla. Stat. (2005). A double jeopardy violation constitutes fundamental error that can be raised for the first time on appeal. Barfield v. State, 871 So. 2d 929 (Fla. 5th DCA 2004).
The State charged the Defendant in Count 2 of the information with the grand theft of “DRUMS and/or JEWELRY and/or TELEVISIONS and/or A DIGITAL VIDEO DISC PLAYER and/or CAMERAS and/or WINE, and/or LIQUOR. ...” Count 3 charged the Defendant with dealing in stolen property, “to wit: JEWELRY.... ” The jury found the Defendant guilty of both grand theft and dealing in stolen property. As , both charges relate to the same jewelry and to one scheme or course of conduct, the Defendant’s conviction for grand theft of the jewelry violates double jeopardy. Stallworth v. State, 538 So. 2d 1296 (Fla. 1st DCA 1989) (reversing the defendant’s grand theft conviction where he was charged with grand theft of two television sets, and trafficking in one of the stolen television sets four days later); see Jones v. State, 453 So. 2d 1192 (Fla. 3d DCA 1984) (rejecting the state’s attempt to limit the grand theft count to a stolen car, and the dealing in stolen property count to a stereo system).
The Defendant’s conviction and ten-year sentence for grand theft must therefore be reversed. Wilson v. State, 884 So. 2d 74 (Fla. 2d DCA 2004); Simon v. State, 840 So. 2d 1173 (Fla. 5th DCA 2003).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Gore v. State, 784 So. 2d 418 (Fla. 2001)
- Jones v. State, 453 So. 2d 1192 (Fla. 3d DCA 1984)
- Barfield v. State, 871 So. 2d 929 (Fla. 5th DCA 2004)
- Wilson v. State, 884 So. 2d 74 (Fla. 2d DCA 2004)
- Scottie McMULLEN v. State, 876 So. 2d 589 (Fla. 5th DCA 2004)
- Stallworth v. State, 538 So. 2d 1296 (Fla. 1st DCA 1989)
- Simon v. State, 840 So. 2d 1173 (Fla. 5th DCA 2003)
- Scottie Lee White v. State, 850 So. 2d 624 (Fla. 2d DCA 2003)