Gomez v. State
220 So. 3d 495
| Fla. Dist. Ct. App. | 2017Background
- Defendant Ibes Gomez entered open (non‑negotiated) guilty pleas to multiple counts across five case numbers involving organized fraud, grand theft, and uttering worthless checks.
- At sentencing the court imposed multiple concurrent five‑year terms but ordered certain counts to run consecutively, producing a 15‑year aggregate sentence.
- Gomez waived a general right to appeal trial court rulings but did not expressly waive the right to appeal on double jeopardy grounds.
- The appellate issue focused on whether convictions for organized fraud and grand theft (in case nos. 14‑22837 and 15‑1546) violated double jeopardy because grand theft is a lesser‑included offense of organized fraud.
- The State argued an exception in the Communications Fraud Act might permit dual convictions, but the court concluded the statute did not authorize separate convictions for organized fraud and grand theft based on the record.
- Court vacated the grand theft convictions in 14‑22837 and 15‑1546, ordered a corrected scoresheet, and remanded for resentencing; all other convictions and sentences were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dual convictions for organized fraud and grand theft violate double jeopardy | State contended an exception in the Communications Fraud Act could permit separate convictions when grand theft is committed by communication | Gomez argued dual convictions violate double jeopardy because grand theft is subsumed by organized fraud and he entered an open plea without waiving double jeopardy | Vacated grand theft convictions in 14‑22837 and 15‑1546; organized fraud convictions remain; remanded for corrected scoresheet and resentencing |
| Whether double jeopardy claim was preserved despite guilty plea | State implied plea bars attack; court noted open plea exception | Gomez argued open plea allows first‑time appellate double jeopardy review | Court found open plea + no explicit waiver = claim may be raised on appeal |
| Whether the Communications Fraud Act authorizes separate punishments for organized fraud and grand theft | State argued legislative intent supports separate judgments when grand theft is tied to communications fraud | Gomez argued statute does not expressly permit separate convictions for organized fraud and grand theft | Court rejected State’s argument; statute doesn’t authorize vacating organized fraud instead of grand theft |
| Whether uttering worthless check and grand theft convictions in 15‑9420 violate double jeopardy | Gomez argued they did | State argued they do not | Court rejected Gomez’s claim; affirmed dual convictions in 15‑9420 |
Key Cases Cited
- Novaton v. State, 634 So. 2d 607 (Fla. 1994) (general rule that guilty plea normally precludes later double jeopardy attack; exception for open pleas)
- Pizzo v. State, 945 So. 2d 1203 (Fla. 2006) (held grand theft is lesser‑included of organized fraud and must be vacated when both convictions arise from same conduct)
- State v. Tuttle, 177 So. 3d 1246 (Fla. 2015) (confirmed Pizzo rule: when double jeopardy requires vacatur, the lesser offense as defined by Pizzo should be vacated)
- McKinney v. State, 66 So. 3d 852 (Fla. 2011) (discussed Blockburger test and section 775.021 interplay)
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932) (test for determining whether offenses are the same for double jeopardy purposes)
- Broce v. United States, 488 U.S. 563 (U.S. 1989) (guilty plea generally waives subsequent double jeopardy challenges)