HERIBERTO TOSADO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction for driving without a valid license was vacated as a lesser included offense of driving with a suspended license, violating double jeopardy principles, while other convictions were affirmed.
Dual convictions for driving without a valid license and driving with a suspended license violate double jeopardy because the former is a lesser included offense of the latter.
[1] A conviction for driving without a valid license under section 322.03(1) constitutes a lesser included offense of driving with a suspended license under section 322.34(2)…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In other words, section 322.03(1) is a necessary lesser included offense of section 322.34(2).”
Court's citation to Roedel v. State explaining the lesser included offense relationship between the two driving statutes.
Heriberto Tosado was convicted of multiple offenses including possession of burglary tools, grand theft, burglary of a structure, criminal mischief, a…
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Heriberto Tosado (“Appellant”) appeals his judgment and sentence for convictions of possession of burglary tools, grand theft, burglary of a structure, criminal mischief, driving without a valid license, and driving with a suspended license.1 We find that only one issue on appeal has merit.
Appellant argues, inter alia, that double jeopardy prohibits dual convictions for driving with a suspended license in violation of section 322.34(2)(a), Florida Statutes (2013), and driving without a valid license in violation of section 322.03(1), Florida Statutes (2013). Athough Appellant did not raise this issue below, a violation of the prohibition against double jeopardy constitutes fundamental error, which can be raised for the first time on appeal. Barfield v. State, 871 So.2d 929, 930 (Fla. 5th DCA 2004). The State properly concedes that the elements of driving without a valid license are subsumed by the elements of driving with a suspended license. Roedel v. State, 773 So.2d 1280, 1282 (Fla. 5th DCA 2000) (“In other words, section 322.03(1) is a" necessary lesser included offense of section 322.34(2).”). On remand, we instruct the trial court to vacate Appellant’s judgment and sentence for driving without a valid license.
AFFIRMED IN PART; REVERSED IN PART, and REMANDED WITH INSTRUCTIONS.
LAWSON, C.J., and TORPY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Barfield v. State, 871 So. 2d 929 (Fla. 5th DCA 2004)
- Roedel v. State, 773 So. 2d 1280 (Fla. 5th DCA 2000)