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Gomez v. State

Florida Court of Appeals, Third District

May 10, 2017

Ibes Gomez, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal Nos. 14-13477, 14-13480, 14-22837, 15-1546 & 15-9420, Stacy Glick, Judge.

          Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.

          Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

          ROTHENBERG, J.

         The defendant, Ibes Gomez, entered into an open plea wherein he pled guilty to the charges brought by the State in five separate cases. In this appeal, the defendant contends that his convictions for the some of the offenses violate the prohibition against double jeopardy, requiring correction of the judgments in three of the cases: 14-22837, 15-1546, and 15-9420, and resentencing as to all five cases. Specifically, he contends that his convictions for organized fraud and grand theft violate double jeopardy and that his convictions for uttering a worthless check and grand theft also violate double jeopardy. We conclude that the defendant's double jeopardy argument as to organized fraud and grand theft in case numbers 14-22837 and 15-1546 is well-taken. We therefore reverse and remand with specific instructions to vacate the grand theft convictions in case numbers 14-22837 and 15-1546 and to resentence the defendant based on a corrected scoresheet. We affirm in all other respects.

         I. FACTS

         The defendant was charged by information as follows:[1]

Lower Case No. 14-13477-five counts of obtaining merchandise by means of a worthless check ($150 or more), third degree felonies, in violation of section 832.05(4).
Lower Case No. 14-13480-five counts of obtaining tires by means of a worthless check ($150 or more), third degree felonies, in violation of section 832.05(4).
Lower Case No. 14-22837-Count 1: first degree grand theft, a first degree felony, in violation of sections 812.014(1) and (2)(a); Count 2: organized fraud ($50, 000 or more), a first degree felony, in violation of section 817.034(4)(a)1.; and Counts 3-6: uttering a worthless check ($150 or more), third degree felonies, in violation of section 832.05(2).
Lower Case No. 15-1546-Count 1: third degree grand theft, a third degree felony, in violation of section 812.014(2)(c); Count 2: organized fraud ($20, 000 or less), a third degree felony, in violation of section 817.034(4)(a)3.; and Count 3: uttering a worthless check ($150 or more), a third degree felony, in violation of section 832.05(2).
Lower Case No. 15-9420-Count 1: third degree grand theft, a third degree felony, in violation of section 812.014(2)(c); and Counts 2-5: uttering a worthless check/issue ($150 or more), third degree ...

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