       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            MARCUS JAMES,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D18-2152

                           [February 20, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael I. Rothschild, Judge; L.T. Case Nos. 15-
010704CF10A, 15-010782CF10A and 15-013070CF10A.

  Carey Haughwout, Public Defender, and Timothy Wang, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

    In the hope of securing a youthful offender sentence, Marcus James
entered pleas of no contest to crimes arising in three separate cases. The
trial judge declined to impose youthful offender sentences. In this appeal,
we reverse the conviction of one crime on double jeopardy grounds. Also,
because the trial judge emphasized an improper factor in sentencing, we
reverse the sentences and remand for resentencing before a different
judge.

                               The Crimes

   This appeal involves three cases as set forth below.

                          Burglary of a Dwelling

  A residential burglary occurred in November 2013. In 2015, Marcus
James was identified as the prime suspect based on a fingerprint match.
James was charged with burglary of a dwelling in violation of subsections
810.02(1) and (3), Florida Statutes (2015).

                          Carjacking and Robbery

   In August 2015, a woman walking to her car was approached by a man
who pointed a black semi-automatic handgun at her. The man said, “If
you scream, I’ll shoot you!” He then demanded her purse and keys, and
forced her to the ground while he located her vehicle. The woman
identified James from a photo array as the man who stole her purse, keys,
and car. As a result of this incident, James was charged with armed
carjacking in violation of subsections 812.133(1) and (2)(a), Florida
Statutes and robbery with a firearm of the victim’s purse and its contents
in violation of subsections 812.13(1), (2)(a) and 775.087(2)(a)1.c., Florida
Statutes.

           Grand Theft (Auto) and Aggravated Fleeing or Eluding

    The car stolen in the above carjacking was spotted by a license plate
reader. The police followed the vehicle with lights and sirens activated,
but the driver did not stop until he crashed. The driver and a passenger
fled on foot. James was caught and identified as the driver of the stolen
car. These allegations gave rise to charges of grand theft (auto) in violation
of subsections 812.014(1)(a), (b) and (2)(c)6., Florida Statutes and
aggravated fleeing or eluding in violation of subsection 316.1935(2),
Florida Statutes.

  Defendant’s Open No Contest Plea, Motion for Youthful Offender
                   Sanctions, and Sentencing

   James was sixteen years old when he committed the burglary and had
just turned eighteen when he was caught driving the stolen car. Three
weeks before his twenty-first birthday, his attorney filed motions for
youthful offender sanctions pursuant to Chapter 958, Florida Statutes.
The motions stated that James “would benefit from the rehabilitative
aspects of the sanctions permitted by the Florida Youthful Offender Act.”

   At the plea conference, James pled no contest to all of the pending
charges. The judge advised him of the potential sentences for each charge.

   In each case, defense counsel stipulated to the factual basis for
purposes of the plea and waived the defendant’s right to a presentence
investigation. The judge accepted the defendant’s no contest pleas and


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deferred sentencing pending his decision on the motion for youthful
offender sanctions.

   The parties agreed that James qualified for youthful offender sanctions
pursuant to Chapter 958. The defense attorney argued in support of his
motion, pointing out that James was very young when the offenses
occurred; that he had a good family support system (many family members
were in the courtroom); and that while in custody he had earned his GED.

    Defense counsel’s primary argument was that James was innocent of
the armed carjacking and robbery charges. He told the court that his
client maintained his innocence; that the firearm was never recovered; and
that the victim’s identification was flawed because James did not match
her description of the suspect (i.e., he did not have dreadlocks). According
to his attorney, James was entering a plea to those charges solely because
he needed to be sentenced before his twenty-first birthday to qualify as a
youthful offender.

   The state opposed a youthful offender sentence. The state highlighted
James’s prior juvenile felonies and misdemeanors. The state noted that
James was not taking responsibility for the crime even though the victim
identified him just two days after the carjacking occurred. The state asked
the court to deny the motion for youthful offender sanctions “considering
how serious this case is.”

    The judge asked if the defendant had any other arguments in support
of his motion, and defense counsel told the court that James was a juvenile
and was terrified. He said, “There’s issues concerning the armed robbery
case but he is pleading.”

   From the bench, the court announced that it was denying the
defendant’s motion for youthful offender sanctions. In part, the court
explained:

      First, as to [the armed carjacking and robbery case], it doesn’t
      sound like Mr. James has taken any responsibility. He’s
      plead[ed] to this case by virtue of this plea. He’s admitted to
      having committed this crime. He has a history here. He cut
      off his monitor while he was on release. The court is going to
      deny the youthful offender sentence.

   The court then adjudicated James and imposed these concurrent
sentences:


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    Case No.       Count                               Sentence
    15-13070       Burglary Unoccupied Dwelling        15 years
    15-10782       Carjacking (Armed)                  15 years
    15-10782       Robbery (Firearm)                   15 years
    15-10704       Grand Theft (Auto)                  114.3 months
    15-10704       Aggravated Fleeing or Eluding       114.3 months

   Someone in the courtroom said, “That’s bullshit. That’s bullshit. That’s
bullshit, brother.” Defense counsel asked that the family’s reaction be
noted for the record, and the court responded to the attorney:

      Mr. Curry, you could have had a trial. You could have
      required the State to prove its case. Mr. James chose to plea.
      I accepted his plea knowingly, intelligently and voluntary. He
      took responsibility for his actions in terms of the plea, and
      then you stood here today as his attorney and represented on
      his behalf that he didn’t do the crime to which he just pled.
      He didn’t have to plea. No one forced him to plea, he
      acknowledged that.

      He’s admitted to putting a gun in a woman’s face, taking her
      purse and her car with a firearm. Okay. That’s the Court’s
      sentence. I’m sorry that the family is upset. Maybe if he was
      provided some services when he was 13 – 14 – 15 years old
      committing crimes, he wouldn’t find himself in this position
      today. But apparently the fact that he was committing
      burglaries when he was 15, possessing drugs, stealing things,
      disturbing school functions wasn’t enough to get him services
      as a juvenile and now we find ourself (sic) here today.

      So if there’s any bullshit in this courtroom [it] is the bullshit
      of putting a gun in a woman’s face and Mr. James will –

At that point, the judge was interrupted again by someone in the
courtroom and he abruptly concluded the hearing.

   The conviction for grand theft auto must be vacated because it
                      violated double jeopardy

   As the state concedes, we must vacate the conviction for grand theft of
the same vehicle that was involved in the carjacking.

                                    -4-
    “A defendant’s double jeopardy rights are violated when he is convicted
of two offenses which require identical elements of proof.” Ortiz–Medina v.
State, 126 So. 3d 1183, 1183 (Fla. 4th DCA 2012) (internal quotation
marks and citation omitted). But, “the prohibition against double jeopardy
does not prohibit multiple convictions and punishments where a
defendant commits two or more distinct criminal acts.” Hayes v. State,
803 So. 2d 695, 700 (Fla. 2001). “Although a guilty plea and adjudication
of guilt generally preclude a later double jeopardy attack, an exception
applies when, as in this case, there is a general or open plea, the double
jeopardy is apparent from the face of the record, and there is nothing in
the record to indicate a waiver of double jeopardy.” Bailey v. State, 21 So.
3d 147, 149 (Fla. 5th DCA 2009).

    “For double jeopardy purposes lesser included offenses are tantamount
to the greater offense charged if all the constituent essential elements of
such lesser offenses are included within the elements of such greater
offense.” Bell v. State, 437 So. 2d 1057, 1058 (Fla. 1983). Here, grand
theft auto is a lesser included offense of carjacking because all of the
essential elements of grand theft auto are also elements of carjacking.
Fryer v. State, 732 So. 2d 30, 33 (Fla. 5th DCA 1999) (stating that “[e]ach
of the statutory elements of grand theft auto are statutory elements of the
offense of carjacking.”).

    Our recent opinion in Palmer v. State, 254 So. 3d 426 (Fla. 4th DCA
2018), is directly on point. There, the defendant carjacked a vehicle and
was apprehended two days later driving the stolen car. He was convicted
of grand theft auto and armed carjacking. Id. at 427. In Palmer, as here,
the state conceded that grand theft auto was a lesser included offense of
carjacking, and that the carjacking offense subsumed the later grand theft
auto offense. Id. We accepted the state’s concession of error, holding:

      While the police found the defendant with the vehicle two days
      after the carjacking occurred, the defendant only took one
      vehicle on one occasion. His grand theft auto charge was a
      lesser included offense of his carjacking charge. Because
      these charges resulted from a single criminal act, convictions
      on both of them violate double jeopardy.

Id. at 427–28.

   As in Palmer, this case involves one vehicle taken on one occasion. The
charges resulted from a single criminal act and all of the elements of grand
theft auto are included in the crime of carjacking. As a result, convictions


                                    -5-
for both grand theft auto and carjacking violated the defendant’s right to
be free from double jeopardy.

    “When an appellate court determines that dual convictions are
impermissible, the appellate court should reverse the lesser offense
conviction and affirm the greater.” Pizzo v. State, 945 So. 2d 1203, 1206
(Fla. 2006). We therefore reverse the conviction for grand theft auto and
affirm the conviction for carjacking. 1

    The trial court erred by penalizing appellant at sentencing for
        maintaining his innocence of the carjacking charges

   As the state concedes, the trial court erred by penalizing James at
sentencing for maintaining his innocence of the carjacking charge.

   Here, in entering his plea, James explained why he was entering his
plea of no contest, even though he maintained his innocence of the
carjacking charge. “While a sentencing court has wide discretion as to the
factors it may consider in imposing a sentence, it is constitutionally
impermissible for it to consider the fact that a defendant continues to
maintain his innocence and is unwilling to admit guilt.” Ritter v. State,
885 So. 2d 413, 414 (Fla. 1st DCA 2004); see Aliyev v. State, 835 So. 2d
1232, 1234 (Fla. 4th DCA 2003). 2 “[R]e-sentencing is required even if a
defendant’s refusal to admit guilt was but one of several factors considered
by the court in imposing sentence.” Johnson v. State, 948 So. 2d 1014,
1017 (Fla. 3d DCA 2007).

   We reverse the sentences imposed in this case and remand the case (1)
to vacate the grand theft conviction and dismiss the charge and (2) for
resentencing before a different judge. See Whitmore v. State, 27 So. 3d
168, 172 (Fla. 4th DCA 2010). James is also entitled to a corrected
scoresheet reflecting our reversal of the grand theft auto conviction. See
Fernandez v. State, 199 So. 3d 500, 502 (Fla. 2d DCA 2016).

1 We reject James’s argument that his convictions for armed carjacking and
robbery violated double jeopardy. See Cruller v. State, 808 So. 2d 201, 202 (Fla.
2002); Jacobs v. State, 162 So. 3d 29, 31 (Fla. 4th DCA 2014).
2 Recognized exceptions to the general rule do not apply here.             See §
921.0026(2)(j), Fla. Stat. (2017) (which allows a sentencing court to grant a
downward departure when, among other things, “the defendant has shown
remorse”); Rankin v. State, 174 So. 3d 1092, 1097 (Fla. 4th DCA 2015); Corbitt v.
State, 220 So. 3d 446, 450 (Fla. 5th DCA 2016) (providing that a lack of remorse
may be considered at sentencing where a defendant “freely and voluntarily enters
a plea and admits his involvement in the crimes or presents testimony regarding
his involvement in the crimes during trial.”).

                                      -6-
  Affirmed in part, reversed in part, and remanded for resentencing.

MAY and DAMOORGIAN, JJ., concur.

                          *         *        *

  Not final until disposition of timely filed motion for rehearing.




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