Mandelbaum v. State, 94-2753
| Decision Date | 10 July 1996 |
| Docket Number | No. 94-2753,94-2753 |
| Citation | 676 So.2d 510 |
| Parties | 21 Fla. L. Weekly D1586 Marc D. MANDELBAUM, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Mallorye G. Cunningham, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and William A. Spillias, Assistant Attorney General, West Palm Beach, for appellee.
ON MOTION FOR REHEARING
Contrary to his prior assertion in this appeal that Sirmons v. State, 634 So.2d 153 (Fla.1994), represented a departure from existing law, Appellant now argues by this motion for rehearing that Sirmons was actually a re-affirmation by the supreme court of existing law. Having reviewed the Sirmons decision and the cases cited therein, we grant Appellant's motion for rehearing and republish our opinion as follows:
This is an appeal from the denial of postconviction relief pursuant to Florida Rules of Criminal Procedure 3.850. Appellant claims both a double jeopardy violation and procedural error by the trial court. We affirm on both points.
Appellant was initially charged with robbery of a vehicle from an individual who had borrowed the vehicle from its owner. Appellant was later charged with grand theft auto of the same vehicle from its owner. Appellant, on a guilty plea, was convicted of the grand theft charge. He thereafter moved to have the robbery charge dismissed claiming a double jeopardy violation. The trial court denied this motion, apparently relying on Sirmons v. State, 603 So.2d 82 (Fla. 5th DCA 1992), subsequently quashed by the supreme court. The district court, in Sirmons, had held that dual convictions and sentences under section 775.021(4), Florida Statutes (1989) could result when robbery and grand theft are committed during a single criminal act. After this court denied without opinion Appellant's request for an emergency writ of prohibition, Appellant entered a negotiated plea to the robbery charge.
Although, under the supreme court's decision in Sirmons v. State, 634 So.2d 153 (Fla.1994), Appellant may have had a viable claim that his double jeopardy rights were violated, we find, on the authority of Novaton v. State, 634 So.2d 607 (Fla.1994) and Melvin v. State, 645 So.2d 448 (Fla.1994), that Appellant waived any such claim. In Novaton and Melvin, the supreme court held that where a defendant enters into a bargained plea with the state, that defendant waives any double jeopardy claim that may have affected a resulting conviction or sentence. Novaton, 634 So.2d at 609; Melvin,...
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...So.2d 448 (Fla.1994); Novaton v. State, 634 So.2d 607 (Fla.1994); Laurore v. State, 3 So.3d 1286 (Fla. 3d DCA 2009); Mandelbaum v. State, 676 So.2d 510 (Fla. 4th DCA 1996). MONACO, C.J., SAWAYA and LAWSON, JJ., concur. 1. §§ 810.02(2)(a), 775.087(1), Fla. Stat. (1990). 2. § 794.011(3), Fla.......
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...jeopardy objections. Novaton v. State, 634 So. 2d 607 (Fla. 1994); Melvin v. State, 645 So. 2d 448 (Fla. 1994); Mandelbaum v. State, 676 So. 2d 510 (Fla. 4th D.C.A. [39] Id.; see also United States v. Dixon, 113 S. Ct. 2849, 2860 (1993) (overruling Grady v. Corbin, 495 U.S. 508 (1990); noti......