HECTOR ROMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hector Roman appealed his convictions and sentences for burglary, dealing in stolen property, and grand theft. The Florida appellate court affirmed his convictions but reversed in part because Florida law prohibits convicting a defendant of both theft and dealing in stolen property arising from the same scheme or course of conduct, and remanded for the trial court to vacate one of the two convictions.
The court held that while Roman's convictions and sentences for both theft and dealing in stolen property in connection with one scheme or course of conduct violated section 812.025 and must be vacated as to one count, his other contentions were without merit. The trial court did not misunderstand its sentencing discretion, and the suspended sentence imposed was a recognized sentencing alternative under Florida law.
[1] A defendant cannot be convicted and sentenced for both theft and dealing in stolen property arising from the same scheme or course of conduct.
[2] A trial court's suspended sentence followed by community control and probation is a recognized sentencing alternative.
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Join FLexlaw to unlock all legal intelligence“trial courts are statutorily prohibited from adjudicating a defendant guilty, pursuant to a plea of nolo contendere, of both theft and dealing in stolen property in connection with one scheme or course of conduct”
Establishes the core statutory prohibition that formed the basis for the appellate court's reversal on one count
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Join FLexlaw to unlock all legal intelligenceRoman entered an open plea of no contest to burglary of a dwelling, dealing in stolen property, and grand theft. He was initially sentenced to 30 year…
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Appellant entered an open plea of no contest to (I) Burglary of a Dwelling, (II) Dealing in Stolen Property, and (III) Grand Theft. He was sentenced to 30 years in prison as a habitual offender on Counts I and II and 10 years as a habitual offender on Count III. The trial court suspended the sentence, granted a downward departure, and placed appellant on two years of community control, followed by three years probation, as a habitual offender. Shortly thereafter, appellant’s community control was revoked for multiple violations, including failure to complete the drug/alcohol residential treatment program. The trial court sentenced him to 30 years in prison as a habitual offender on Counts I and II and 10 years in prison as a habitual offender on Count III.
Appellant asserts that his sentences for dealing in stolen property and grand theft violated the prohibition against double jeopardy. We hold instead that his convictions and sentences for both theft and dealing in stolen property in connection with this single scheme or course of conduct were prohibited by section 812.025, Florida Statutes (2010). See Hall v. State, 826 So.2d 268, 271 (Fla.2002) (holding that trial courts are statutorily prohibited from adjudicating a defendant guilty, pursuant to a plea of nolo contendere, of both theft and dealing in stolen property in connection with one scheme or course of conduct).
We disagree, however, with appellant’s other two arguments: (1) that his 30-year sentences on Counts I and II were due to *797the trial court’s failure to understand it had discretion in sentencing him, and (2) that the sentence was unlawful because it was not one of the recognized sentencing alternatives in Florida. The record refutes appellant’s claim that the trial court misunderstood that it had discretion to sentence appellant to less than thirty years in prison, the maximum term of his suspended sentence. Further, the suspended sentence imposed by the court was one recognized by the Florida Supreme Court in Poore v. State, 531 So.2d 161 (Fla.1988).
For the reasons stated above, we remand with directions that appellant’s conviction and sentence be vacated on either Count II (Dealing in Stolen Property) or Count III (Grand Theft). See Hall, 826 So.2d at 271 (“Just as the trier of fact must make a choice if the defendant goes to trial, so too must the trial judge make a choice if the defendant enters a plea of nolo contendere to both counts.”).
Affirmed, in part, Reversed in part and Remanded.
STEVENSON, GROSS and TAYLOR, JJ., concur.
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Noel v. State, 127 So. 3d 769 (Fla. 4th DCA 2013)…n sixty days of the sentence. Under the hypothetical plea agreement, the defendant and the state agree to a suspended prison sentence of two years, to be imposed automatically if the defendant violates any condition of probation. See Roman v. State, 73 So. 3d 796, 796-97 (Fla. 4th DCA 2011) (stating Florida Supreme Court recognizes suspended sentencing structure in which court sentences a defendant to probation but may sentence defendant to original prison term if the defendant violates the terms of probatio…
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Ochoa v. State, 120 So. 3d 70 (Fla. 2d DCA 2013)…, 271 (Fla.2002) (holding that section 812.025 also prohibits a trial court from adjudicating a defendant guilty — pursuant to a plea — of both theft and dealing in stolen property in connection with one scheme or course of conduct); Roman v. State, 73 So. 3d 796 (Fla. 4th DCA 2011) (holding that the defendant’s convictions and sentences for both theft and dealing in stolen property in connection with a single scheme or course of conduct were proscribed by section 812.025, Florida Statutes (2010), not by the…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Hall v. State, 826 So. 2d 268 (Fla. 2002)