Anucinski v. State

Decision Date24 September 2014
Docket NumberNo. SC12–1281.,SC12–1281.
PartiesJessica Patrice ANUCINSKI, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Robert Jay Krauss, Bureau Chief, and Sara Elizabeth Macks, Assistant Attorney General, Tampa, FL, for Respondent.

Opinion

QUINCE, J.

Jessica Anucinski seeks review of the decision of the Second District Court of Appeal in Anucinski v. State, 90 So.3d 879 (Fla. 2d DCA 2012), on the ground that it expressly and directly conflicts with a decision of this Court in Hall v. State, 826 So.2d 268 (Fla.2002), as well as with the decisions of the Fourth District Court of Appeal in Gordon v. State, 24 So.3d 727 (Fla. 4th DCA 2009), L.O.J. v. State, 974 So.2d 491 (Fla. 4th DCA 2008), and Pomaski v. State, 989 So.2d 721 (Fla. 4th DCA 2008), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

Pursuant to section 812.025, Florida Statutes (2009), a defendant may properly be charged with both theft and dealing in stolen property. However, when the offenses are committed “in connection with one scheme or course of conduct ... the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.” § 812.025, Fla. Stat. (2009). The question raised in this case relates to the proper remedy on appeal where a defendant has been adjudicated guilty of theft and dealing in stolen property in violation of section 812.025, following an open plea of guilty or no contest. Following our decision in Hall, we hold that the proper remedy is to remand the case for the trial court to exercise its discretion in vacating the adjudication of guilt of either the dealing in stolen property or theft count, and to resentence the defendant on the remaining count. We therefore quash the district court's decision below and approve Hall, Pomaski, L.O.J., and Gordon. We remand this case for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

In December 2009, Anucinski was charged in Collier County with one count of grand theft, a third-degree felony,1 and one count of dealing in stolen property, a second-degree felony.2 The State alleged in the information that Anucinski committed the grand theft of property belonging to Tiffany & Co. and that she dealt in the stolen property that same day. In response to the charges, Anucinski executed a plea of guilty or no contest as to both offenses.

At Anucinski's plea hearing, the prosecutor outlined the factual basis for the plea: “Ms. Anucinski walked into Tiffany's, stole a $2,500 ring right in the middle of the day, and then pedaled her bike down to the pawnshop and pawned it for an amount of $400.” Finding that she possessed sufficient mental capacity to enter the plea and that there was a factual basis for the plea, the trial court adjudicated Anucinski guilty of both grand theft and dealing in stolen property. Anucinski did not contend at the plea hearing that, based on section 812.025, the court could not adjudicate her guilty of both offenses. On each count, the trial court sentenced Anucinski to concurrent one-year jail terms as special conditions of probation. Following the incarcerative portion of her sentence, Anucinski was ordered to serve six years of probation on the dealing in stolen property count and four years of probation on the grand theft count, which were ordered to run concurrently with each other.

Anucinski appealed her dual adjudications of guilt, claiming that the trial court committed fundamental error—per section 812.025 —by accepting her plea and adjudicating her guilty of both grand theft and dealing in stolen property. The Second District reversed, holding that, based on section 812.025, the trial court erred in adjudicating Anucinski guilty of both offenses. Anucinski, 90 So.3d at 880. As to the remedy on appeal, Anucinski sought for the case to be remanded to the trial court for it to vacate one of her convictions based on whether she was a “common thief” or a “trafficker in stolen property,” while the State asked the district court to vacate the grand theft conviction. Id. at 881. Despite acknowledging being bound by Hall, which “suggests some level of discretion in deciding which conviction to vacate upon remand,” the district court remanded with directions that the trial court vacate the grand theft conviction and to resentence Anucinski accordingly. Id. at 880, 882. The district court found that

when a jury convicts a defendant of both grand theft and dealing in stolen property, trial courts do not have to engage in any determination of which conviction to vacate—they are simply directed to vacate the lesser offense. Therefore, requiring trial courts to hold an evidentiary hearing in plea cases to determine which crime a defendant is “more guilty of” seems illogical when no such analysis is required after a jury verdict.

Id. at 882 (citation omitted). The district court reasoned that there was “no factual determination left to be made by the trial court and that its decision fosters judicial economy. Id.

ANALYSIS

Section 812.025, provides as follows:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

§ 812.025, Fla. Stat. Adjudicating a defendant guilty of both theft and dealing in stolen property in accordance with a plea of guilty or no contest violates section 812.025, if the offenses were “in connection with one scheme or course of conduct.” The question raised is whether the proper remedy on appeal for such violation is to remand the case back to the trial court to decide which count to vacate, as advanced by Anucinski, or to simply vacate the lesser offense, as argued by the State. Questions of statutory interpretation are subject to de novo review. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007).

Hall, Blackmon,3 and Williams4

In Hall, we held that section 812.025 prohibits a trial court from adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct pursuant to a plea of nolo contendere.” 826 So.2d at 271. We explained that

Section 812.025 allows the State to charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts, but the trier of fact must then determine whether the defendant is a common thief who steals property with the intent to appropriate said property to [his or her] own use or to the use of a person not entitled to the use of the property or whether the defendant traffics or endeavors to traffic in the stolen property. The linchpin of section 812.025 is the defendant's intended use of the stolen property. The legislative scheme allows this element to be developed at trial and it is upon this evidence that the trier of fact may find the defendant guilty of one or the other offense, but not both. The legislative scheme is clear and the same legislative rationale militates against allowing a defendant to plead guilty to inconsistent counts, i.e., stealing property with intent to use under section 812.014 or stealing property with intent to traffic in the stolen goods pursuant to section 812.019. 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. Legislative history leads us to believe that this comports with legislative intent.

Id. at 271 (emphasis added). We remanded with directions that the defendant's conviction be reversed on either the grand theft or dealing in stolen property count, and for him to be resentenced on the remaining count. Id. at 272.

Recently, this Court decided Blackmon and Williams, which both involved jury trials. In Blackmon, we held that the defendant's convictions of petit theft and dealing in stolen property violated section 812.025, and that the trial court erred in (1) failing to instruct the jury on section 812.025, and (2) adjudicating the defendant guilty of both offenses. 121 So.3d at 548. Finding that the defendant failed to demonstrate fundamental error, this Court approved the district court's reversal of the petit theft conviction. Id. at 549, 551.

Unlike the defendant in Blackmon, the defendant in Williams requested for the trial judge to instruct the jury under section 812.025, Florida Statutes (2008). 121 So.3d at 526. We concluded that the defendant's convictions of grand theft and dealing in stolen property violated section 812.025, and that the trial court erred in refusing to instruct the jury on the statute, and in precluding the defendant from arguing to the jury that it could find him guilty of either offense. Id. at 534. Finding the errors not to be harmless, we determined that the defendant was entitled to a new trial. Id. We held in Williams that when both theft and dealing in stolen property counts are submitted to a jury, the trial court must provide an instruction on section 812.025. Id. at 531.5

The Conflict Issue

As noted above, in remedying the improper dual adjudications of guilt of grand theft and dealing in stolen property in accordance with the defendant's plea of no contest, this Court in Hall decided not to vacate the lesser offense. To the contrary, we remanded with directions that the conviction be reversed on either the grand theft count or dealing in stolen property count, and for resentencing on the remaining count. Hall, 826 So.2d at 272. We thus afforded the trial court discretion on remand to decide which count to vacate based on whether the...

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8 cases
  • Debaun v. State
    • United States
    • Florida Supreme Court
    • March 16, 2017
    ...intercourse. This presents a question of statutory interpretation, which is subject to de novo review. Anucinski v. State , 148 So.3d 106, 108 (Fla. 2014). With regard to questions of statutory interpretation, we have stated:Our purpose in construing a statute is to give effect to the Legis......
  • Kablitz v. State
    • United States
    • Florida District Court of Appeals
    • May 13, 2015
    ...in his case and that the trial court should have been permitted to choose which of the two offenses to vacate. See Anucinski v. State, 148 So.3d 106, 107 (Fla.2014) (holding this is the proper remedy where the defendant entered an open plea); cf. Williams v. State, 121 So.3d 524, 534 (Fla.2......
  • Bradshaw v. State, 1D17-4992
    • United States
    • Florida District Court of Appeals
    • February 18, 2019
    ...or no contest violates section 812.025, if the offenses were ‘in connection with one scheme or course of conduct.’ " Anucinski v. State , 148 So.3d 106, 108 (Fla. 2014). As the jury was instructed here, " ‘[o]ne scheme or course of conduct’ means that there was no meaningful disruption of t......
  • Manata v. State, 1D15–1925.
    • United States
    • Florida District Court of Appeals
    • March 2, 2016
    ...of grand theft convictions), and to resentence the appellant on the remaining organized scheme to defraud count. See Anucinski v. State, 148 So.3d 106 (Fla.2014) (holding that appropriate remedy for defendant improperly convicted of both theft and dealing in stolen property is to remand for......
  • Request a trial to view additional results
2 books & journal articles
  • Judgment and sentence
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...in vacating the adjudication of guilt on one charge or the other and resentence defendant on remaining count. Anucinski v. State, 148 So. 3d 106 (Fla. 2014) §775.082(3)(a)4, Florida Statutes, imposes a mandatory minimum sentence of twenty-five years’ imprisonment for adults convicted of lew......
  • Crimes
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...in vacating the adjudication of guilt on one charge or the other and resentence defendant on remaining count. Anucinski v. State, 148 So. 3d 106 (Fla. 2014) approving Hall v. State , 826 So. 2d 268 (Fla. 2002), Gordon v. State , 24 So. 3d 727 (Fla. 4th DCA 2009), L.O.J. v. State , 974 So.2d......

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