MICHAEL EARL THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE.

Fla. 1st DCA | 2018-01-26
Nos. 1D16–3187; 1D16–3188; 1D16–3189; 1D16–3190; 1D16–3191; 1D16–3192 (Consolidated for disposition)
236 So. 3d 1159 Florida District Court of Appeal, First District (2018) Positive Treatment
Cited by 5 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Michael Earl Thomas appeals six consolidated cases challenging dual convictions for dealing in stolen property and theft based on the same conduct, and the imposition of unannounced fees and costs. The court affirms Thomas's convictions but reverses and remands to vacate one of the dual convictions in each of two cases and to strike certain unannounced fees and costs.


Holding

The dual convictions for dealing in stolen property and theft in cases 1D16-3189 and 1D16-3190 must be vacated as to one offense in each case because they are based on a single course of conduct, contrary to section 812.025, Florida Statutes. The discretionary fines and surcharges must be stricken because they were not pronounced at sentencing. The investigative costs must be stricken because they were not requested by the Sheriff's Office as required by section 938.27(1), Florida Statutes, and may not be reimposed.


Headnotes

[1] A court is precluded from allowing a defendant to plead guilty to both dealing in stolen property and theft if the offenses are based on a single course of conduct.

[2] When dual convictions for dealing in stolen property and theft are based on a single course of conduct, a defendant is entitled to have one of the adjudications vacated.

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Key Quotes

“a court is precluded from allowing a defendant to plead guilty to both offenses if they are based on a single course of conduct”

Establishes the legal prohibition on dual convictions for dealing in stolen property and theft based on the same conduct under section 812.025, Florida Statutes.

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Facts & Procedural History

Thomas was convicted in case 1D16-3188 of armed burglary with actual possession of a firearm, two counts of dealing in stolen property, and two counts…

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Opinion of the Court
B.L. Thomas, C.J.

B.L. Thomas, C.J.

Appellant, Michael Earl Thomas, raises two issues in connection with his judgments and sentences in these six appeals, which we have consolidated for disposition. Following Appellant's conviction in case number 1D16-3188 of armed burglary with actual possession of a firearm, two counts of dealing in stolen property, and two counts of false verification of ownership to a pawnbroker, Appellant entered open guilty pleas to several burglary, theft, false verification, and dealing in stolen property counts in the five remaining cases. Appellant now argues on appeal that the trial court erred in adjudicating him guilty of both dealing in stolen property and theft based on the same conduct in two of the cases, and challenges the imposition of certain unannounced fees and costs in all six cases.

With respect to the dual adjudications for dealing in stolen property and theft in case numbers 1D16-3189 and 1D16-3190, the State properly concedes error. Pursuant to section 812.025, Florida Statutes, a court is precluded from allowing a defendant to plead guilty to both offenses if they are based on a single course of conduct. Anucinski v. State , 148 So.3d 106, 110 (Fla. 2014). Here, the dual convictions in case number 1D16-3189 for grand theft and dealing in stolen property were both based on the same gas compressor, which Appellant stole from a pawnshop and then sold at another pawnshop approximately twenty minutes later. Similarly, the dual convictions in case number 1D16-3190 for petit theft and dealing in stolen property were based on a lawnmower stolen from one pawnshop and sold at another within an hour. Because it is undisputed that these dual offenses are based on a single course of conduct, Appellant is entitled to have one of the adjudications in each of the two cases vacated. See id. We therefore remand for the court to exercise its discretion in determining which one of the two offenses in each case to vacate, and to resentence Appellant accordingly. See Hall v. State , 826 So.2d 268, 272 (Fla. 2002).

As to fees and costs, Appellant challenges three assessments in the written judgments and sentences for each of the six cases: a discretionary fine pursuant to section 775.083(1), Florida Statutes ; a surcharge pursuant to section 938.04(1), Florida Statutes ; and a Sheriff's Office Investigative Cost pursuant to section 938.27(1), Florida Statutes. The State correctly concedes that the discretionary fines and surcharges were not specifically pronounced at sentencing and therefore must *1161be stricken. See Carmichael v. State , 192 So.3d 640, 641 (Fla. 1st DCA 2016) ; Mills v. State , 177 So.3d 984, 988 (Fla. 1st DCA 2015). On remand, the trial court may strike the fine and surcharge in each case and enter a corrected judgment and sentence, or may reimpose them after following the proper procedure. Mills , 177 So.3d at 988.

Regarding the Sheriff's Office Investigative Cost, the State argues that, although there was no request on the record for the imposition of this cost in any of the cases, affirmance is proper because the arrest report in each case showed the actual cost incurred. We disagree. Section 938.27(1), Florida Statutes, expressly provides that "convicted persons are liable for payment of the costs of prosecution, including investigative costs incurred by law enforcement agencies ... if requested by such agencies ." (Emphasis added.) Based on the plain language of the statute, the investigative costs must be stricken, and they may not be reimposed on remand. Vaughn v. State , 65 So.3d 138, 139 (Fla. 1st DCA 2011).

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.*

Osterhaus and Winsor, JJ., concur.


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Citator

Cited By

  • Mercado v. State (Fla. 2d DCA 2018)
    …court to strike the $100 in prosecution/investigative costs because the plain language of section 938.27(1), Florida Statutes (2016), requires that the costs be requested and there is no such request on the record before us. See Thomas v. State, 236 So. 3d 1159, 1161 (Fla. 1st DCA 2018). The prosecution/investigative costs may not be reimposed on remand. See id. Affirmed and remanded with instructions. LaROSE, C.J., and SLEET, JJ., Concur.…
  • Vereen v. State, 267 So. 3d 548 (Fla. 1st DCA 2019)
  • Dalton Dooly v. State (Fla. 1st DCA 2020)
    …t the trial court erred in imposing a discretionary fine under section 775.083, Florida Statutes, and a related surcharge under section 938.04, Florida Statutes, without giving him adequate notice and an opportunity to be heard. See Thomas v. State, 236 So. 3d 1159, 1160–61 (Fla. 1st DCA 2018). We therefore reverse those portions of his sentence. On remand, the trial court may either strike the fine and surcharge and enter a corrected judgment and sentence or reimpose the fine and surcharge after following the…

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