          Supreme Court of Florida
                                    ____________

                                    No. SC12-1281
                                    ____________

                        JESSICA PATRICE ANUCINSKI,
                                  Petitioner,

                                          vs.

                               STATE OF FLORIDA,
                                   Respondent.

                                [September 24, 2014]

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


      1. § 812.014(1), (2)(c), Fla. Stat. (2009).

      2. § 812.019(1), Fla. Stat. (2009).

                                          -2-
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


                                          -3-
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.

                                         -4-
§ 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

      3. Blackmon v. State, 121 So. 3d 535 (Fla. 2013).

      4. Williams v. State, 121 So. 3d 524 (Fla. 2013).

                                        -5-
      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


                                          -6-
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

defendant is a “common thief who steals property with the intent to appropriate

said property to his own use or to the use of a person not entitled to the use of the

property” or one who “traffics or endeavors to traffic in the stolen property.” Id. at

271.




       5. We authorized the use of amended instruction 14.2 following our
decision in Williams. See In re Standard Jury Instructions in Criminal Cases–
Instruction 14.2, 140 So. 3d 992 (Fla. 2014).

                                         -7-
      Consistent with Hall, the Fourth District, in Gordon, Pomaski, and L.O.J.,

allowed the trial courts to exercise their discretion on remand. See Gordon, 24 So.

3d at 728 (reversing and remanding for the trial court to vacate either the grand

theft or dealing in stolen property offense, and resentence the defendant, having

been adjudicated guilty of both offenses following a plea of nolo contendere);

Pomaski, 989 So. 2d at 722-23 (reversing and remanding for the trial court—which

found the defendant guilty of both grand theft and dealing in stolen property and

withheld adjudication following a no contest plea—to determine whether either

offense is supported by the record); L.O.J., 974 So. 2d at 493-94 (reversing and

remanding for the trial court to vacate either the dealing in stolen property

delinquency adjudication or the delinquency adjudications of the grand thefts,

which had resulted from a plea of no contest).

                                     This Case

      As a threshold matter, we find that Anucinski is not precluded from raising

her claim that her dual adjudications of guilt violate section 812.025 even though

the argument was not raised in the trial court. We conclude that Anucinski’s grand

theft and dealing in stolen property offenses, which involved the theft of a ring and

the pawning thereof the same day, were “in connection with one scheme or course

of conduct” under section 812.025. See Blackmon, 121 So. 3d at 548 n.17 (finding

that “one scheme or course of conduct” was satisfied where the defendant took


                                         -8-
steel bars and approximately two hours later sold them to a scrap yard). Therefore,

the trial court erred in adjudicating Anucinski guilty of both grand theft and

dealing in stolen property, following her open plea of guilty or no contest, contrary

to section 812.025. See Hall, 826 So. 2d at 271 (“[W]e find 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.”); Blackmon, 121 So. 3d at 548; Williams, 121 So. 3d at

534.

       With regard to the appropriate remedy, we follow the remedy we articulated

in Hall.6 We hold that the trial court should be allowed to exercise its discretion in

vacating the adjudication of guilt of either theft or dealing in stolen property, and

to resentence the defendant on the remaining count. In exercising its discretion,

the trial court on remand is to decide whether the defendant is a “common thief,”

i.e., the defendant had the intent to appropriate the property to her own use or to

the use of any person not entitled to the use of the property, or a “trafficker,” i.e.,



       6. Without mentioning this Court’s decision in Hall, the dissent argues that
Anucinski’s lesser offense should be vacated and that the Court “approved a result
[in Blackmon] that inexplicably is totally at odds with the result reached by the
majority here.” Dissent op. at 12-13. However, instead of requesting a remand to
the trial court for it to exercise its discretion in vacating either count, the Petitioner
in Blackmon argued that he was entitled to a new trial because the jury was
allowed to return guilty verdicts on both offenses, which we rejected. 121 So. 3d
at 540, 549.

                                           -9-
the defendant had the intent to traffic or endeavor to traffic in the stolen property.

Finding the defendant to be a “common thief” requires the court to vacate the

dealing in stolen property count. On the other hand, finding the defendant to be a

“trafficker” requires the court to vacate the theft count. The trial court on remand

need not conduct an evidentiary hearing on this matter where the record before it is

sufficient for it to exercise its discretion. Accordingly, we remand for the trial

court to vacate either Anucinski’s adjudication of guilt of her grand theft count or

of her dealing in stolen property count, and to resentence her on the remaining

count.

                                   CONCLUSION

         Based on the foregoing, we quash the Second District Court’s decision in

Anucinski, and approve our decision in Hall as well as the decisions of the Fourth

District in Pomaski, L.O.J., and Gordon. We remand this case for proceedings

consistent with this opinion.

         It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, POLSTON, and PERRY, JJ., concur.
CANADY, J., dissents with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.




                                         - 10 -
CANADY, J., dissenting.

      In this case we consider the proper remedy on appeal when a defendant—

who has entered an unbargained-for, open plea to the court—is improperly

convicted of both theft and dealing in stolen property “in connection with one

scheme or course of conduct,” contrary to section 812.025, Florida Statutes (2009),

but the defendant failed to preserve the error in the trial court. Because I conclude

that the proper remedy is to vacate the conviction of the lesser offense,7 I would

approve the result reached by the Second District Court of Appeal.

      Generally, Florida law requires offenders to be “sentenced separately for

each criminal offense” committed “in the course of one criminal transaction or

episode.” § 775.021(4)(a), Fla. Stat. (2009). In enacting this rule, the Legislature

intended “to convict and sentence for each criminal offense committed in the

course of one criminal episode or transaction and not to allow the principle of

lenity as set forth in subsection [§ 775.021](1) to determine legislative intent.” §

775.021(4)(b), Fla. Stat. (2009). “Exceptions to this rule of construction are: 1.

Offenses which require identical elements of proof. 2. Offenses which are degrees

of the same offense as provided by statute. 3. Offenses which are lesser offenses



       7. The lesser offense is either the offense of a lesser degree—here, the third-
degree grand theft rather than the second-degree dealing in stolen property—or, if
the offenses are of the same degree, the offense with the lesser severity ranking
under the Criminal Punishment Code. See § 921.0022(3)(a), Fla. Stat. (2009).

                                        - 11 -
the statutory elements of which are subsumed by the greater offense.” Id. When

one of these exceptions comes into play, dual convictions are understood to be

double jeopardy violations. An additional exception to the general rule of separate

sentences for each offense exists in section 812.025—the statute at issue here—

which provides that a defendant may be convicted of either theft or dealing in

stolen property, but not both, where those charges relate to “one scheme or course

of conduct.”

      When dual convictions are impermissibly imposed in violation of section

775.021(4)(b), the proper remedy is to vacate the lesser conviction. See Pizzo v.

State, 945 So. 2d 1203, 1206 (Fla. 2006) (“When an appellate court determines that

dual convictions are impermissible, the appellate court should reverse the lesser

offense conviction and affirm the greater.”); State v. Barton, 523 So. 2d 152, 153

(Fla. 1988) (stating that when “one of two convictions must fall, we hold that the

conviction of the lesser crime should be set aside”).

      As I have previously explained, “[t]here is no more harm [when the lesser

conviction is vacated due to a violation of section 812.025] than there is under

section 775.021(4) when impermissible dual convictions have been returned and

the conviction for the lesser offense has been set aside.” Williams v. State, 121 So.

3d 524, 535 (Fla. 2013) (Canady, J., dissenting). Therefore, when impermissible

dual convictions for theft and dealing in stolen property are imposed, the remedy


                                        - 12 -
should also be to vacate the lesser conviction. The majority has never provided a

cogent explanation for why impermissible dual convictions under section 812.025

should be treated differently than impermissible dual convictions under section

775.021(4)(b). And, indeed, the majority in recent cases has not been consistent in

its approach to this issue.

      Recently, in Blackmon v. State, 121 So. 3d 535 (Fla. 2013), the Court

approved a result that inexplicably is totally at odds with the result reached by the

majority here. Blackmon was charged with both theft and dealing in stolen

property after he took steel bars from the side of the road and sold them to a scrap

yard hours later. Id. at 538-39. At trial, the jury was not instructed that it could

only return a guilty verdict for either theft or dealing in stolen property in

connection with one scheme or course of conduct, and Blackmon did not request

such an instruction. Id. at 539. The jury found Blackmon guilty of both theft and

dealing in stolen property. Id. The trial court thereafter adjudicated Blackmon

guilty of both offenses and sentenced him for each offense. Id. Blackmon did not

bring section 812.025 to the trial court’s attention, and he did not object to the dual

convictions or sentences. Id.

      On review, we held that although the trial court erred in failing to instruct

the jury on the rendering of dual convictions and in adjudicating Blackmon guilty

of both offenses in connection with one scheme or course of conduct, the error was


                                         - 13 -
not preserved by Blackmon, and it was not fundamental error such that we would

require a new trial or resentencing. Id. at 548-49. Therefore, we approved the

decision of the district court, vacating the conviction for the lesser offense. Id. at

549. In doing so, we noted that the remedy “was consistent with the remedy in

double jeopardy contexts.” Id. at 549 n.18 (citing Pizzo, 945 So. 2d at 1206).

      Anucinski was also charged with theft and dealing in stolen property in

connection with one scheme or course of conduct. Anucinski v. State, 90 So. 3d

879, 880 (Fla. 2d DCA 2012). By way of her guilty plea, she admitted committing

both offenses, and she stipulated that the State could prove each offense beyond a

reasonable doubt. The convictions resulting from her plea are no different than

convictions resulting from a jury verdict. See Boykin v. Alabama, 395 U.S. 238,

242 n.4 (1969) (“A plea of guilty is more than a voluntary confession made in open

court. It also serves as a stipulation that no proof by the prosecution need b[e]

advanced . . . . It supplies both evidence and verdict, ending controversy.”);

McCrae v. State, 395 So. 2d 1145, 1154 (Fla. 1980) (“[O]nce a plea . . . has been

accepted by a court, it is the conviction and the only remaining step is the formal

entry of judgment and the imposition of sentence.”); Robinson v. State, 373 So. 2d

898, 902 (Fla. 1979); Reyes v. Kelly, 224 So. 2d 303, 306 (Fla. 1969) (“[W]e think

that the plea of guilty in this situation is correctly accorded the effect of a jury

verdict . . . .”). Like Blackmon, Anucinski did not object to the dual convictions


                                          - 14 -
and sentences, and she did not bring section 812.025 to the attention of the trial

court.

         The trial courts in each of these cases erred in entering convictions for both

theft and dealing in stolen property in connection with one scheme or course of

conduct. In each case the error was neither preserved nor fundamental so as to

require resentencing. The cases are indistinguishable except for the

inconsequential fact that Anucinski’s improper dual convictions were the result of

an open plea rather than a trial. Requiring trial courts “in plea cases to determine

which crime a defendant is ‘more guilty of’ seems illogical when no such analysis

is required [when improper dual convictions are rendered] after a jury verdict.”

Anucinski, 90 So. 3d at 882. Therefore, there is no reason to impose a different

remedy here than we did in Blackmon.

         Accordingly, I would approve the decision of the Second District Court of

Appeal directing that the conviction for the lesser crime be vacated.

Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions

         Second District - Case No. 2D10-3557

         (Collier County)

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

         for Petitioner


                                          - 15 -
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Robert Jay Krauss,
Bureau Chief, and Sara Elizabeth Macks, Assistant Attorney General, Tampa,
Florida,

      for Respondent




                                     - 16 -
