Barfield v. StateBarfield v. State
Clarence Barfield appeals the sentences imposed following his plea of guilty to violating the terms of his probation in case numbers 97-1578 (robbery with a firearm) and 97-1997 (burglary of a dwelling, dealing in stolen property, and grand theft).1
We emphasize that Barfield entered an open, unconditional plea to the court that was not made pursuant to a plea agreement. Moreover, there is nothing in the record to indicate that Barfield waived any double jeopardy violation. See Novaton v. State, 634 So.2d 607 (Fla.1994).
Barfield‘s argument is premised on
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.
In Hall v. State, 826 So.2d 268 (Fla.2002), the supreme court found that ”
Barfield acknowledges that he did not raise this issue below, but contends that because his argument is a double jeopardy claim, it can be raised for the first time on appeal, noting that a conviction that is not statutorily authorized may be attacked at any time. The State responds that this is not a double jeopardy claim, asserting that Hall did not find that the dual convictions violated double jeopardy, but rather that they were prohibited by
The State‘s argument was rejected in Kilmartin v. State, 848 So.2d 1222 (Fla. 1st DCA 2003), wherein the court analyzed Hall and concluded:
Given the holding in Hall, one must conclude that the supreme court had determined that the legislature‘s intent when it adopted
section 812.025 was to prohibit separate punishments for both grand theft and dealing in stolen property when both offenses were parts of the same criminal transaction. Accordingly, one must conclude, further, that separate punishments for both offenses in such cases, whether as the result of a trial or of pleas, violate the state and federal prohibitions against double jeopardy.Appellant raises this argument for the first time on appeal, following his unconditional guilty pleas to both offenses. The state contends that appellant is precluded by his guilty pleas from doing so, relying on
Florida Rule of Appellate Procedure 9.140(b)(2) , which identifies the circumstances in which an appeal from a guilty or no contest plea is permitted. Appellant responds that the dual convictions constitute fundamental error, and that this appeal is permitted byrule 9.140(b)(2)(A)(ii)e as one “otherwise provided by law.” We agree with appellant because it is clear that a conviction that violates the prohibition against double jeopardy constitutes fundamentalerror, e.g., State v. Johnson, 483 So.2d 420 (Fla.1986); and a claim of fundamental error may be raised for the first time on appeal. E.g., Sanford v. Rubin, 237 So.2d 134 (Fla.1970).
Id. at 1224; see also Toson v. State, 864 So.2d 552 (Fla. 4th DCA 2004).
In the instant case, it is the lack of record evidence that Barfield‘s convictions for dealing in stolen property and grand theft arose from the same scheme or course of conduct that creates the true impediment to Barfield‘s argument on appeal. Our review of the record shows that Count II of the information charged Barfield with grand theft of, among other things, jewelry, while Count III charged him with dealing in stolen property, alleging that Barfield “did traffic in or endeavor to traffic in property, to-wit: jewelry that [he] knew or should have known was stolen....” There is no mention in the record whether the jewelry referenced in the counts is the same jewelry; however, the information charged that both offenses occurred on or about May 12, 1997. The fact that the offenses occurred the same date arguably supports Barfield‘s position, but only inferentially. Our perusal of the transcript of the sentencing hearing reveals that it too is silent regarding the specifics of the case, as the public defender asked the court to “take judicial notice of the arrest affidavit and the factual allegations contained in the case file that support the factual basis.” Although the arrest affidavit is contained in the record, it does not reflect the facts of the case and, in any event, could not have been relied upon. See Burgess v. State, 831 So.2d 137 (Fla. 2002) (rejecting the argument that an unsworn arrest report in the court file indicating that offenses for which defendant was convicted were part of same criminal episode could be used as the basis for determining that offenses arose from same criminal episode).
We conclude that an evidentiary hearing is required to determine whether the offenses were part of the same scheme or course of conduct, as there is nothing in the record that conclusively demonstrates (or rebuts) that claim. Thus, it would appear that the issue may have to be dealt with via a rule 3.850 motion. See Burgess (holding that the issue of whether offenses arose out of single criminal episode is not a pure question of law but rather requires an evidentiary determination pursuant to a motion for post-conviction relief under
AFFIRMED.
PLEUS and ORFINGER, JJ., concur.