PIAZZA v. STATE

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Aaron PIAZZA, Appellant, v. STATE of Florida, Appellee.

No. 1D16–2235

Decided: March 15, 2018

Andy Thomas, Public Defender, Jasmine Quintera Russell, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Robert Charles Lee, Assistant Attorney General, Tallahassee, for Appellee.

Appellant agreed to a negotiated plea and entered pleas of guilty to two counts of possession of a firearm by a felon and one count of grand theft of a firearm. The charges were based on the following facts: Appellant, a felon, entered a gun store, where he possessed one rifle, then possessed a handgun, then possessed another rifle, and then stole the handgun he had previously possessed. Originally charged with two counts of possession of a firearm by a felon based on the two possessions of two rifles, the trial court granted a motion to dismiss one of those counts. Appellant then pled guilty to two separate charges based on his possession of the rifle and theft of the firearm.

Appellant now argues on appeal that he cannot be sentenced for possession of a firearm by a felon and also for grand theft of a firearm.

The Florida Supreme Court has directly held that when a criminal defendant agrees to a negotiated plea, he cannot raise a claim based on double jeopardy:

The general rule is that a plea of guilty and subsequent adjudication of guilt precludes a later double jeopardy attack on the conviction and sentence. United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) ). There is an exception to this general rule when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.

Novaton v. State, 634 So.2d 607, 609 (Fla. 1994).

Appellant's argument is thus foreclosed under Novaton. Appellant asserted a double jeopardy argument on one count and was successful. Appellant then entered into a negotiated plea, and accepted the benefits of the plea, thus waiving any further argument based on double jeopardy. Appellant argues that, because he is challenging the denial of a motion to dismiss filed before he entered his plea, his double jeopardy argument is preserved. However, “where [the appellant] entered into a bargained plea with the State, we find that [the appellant] waived any double jeopardy claim that may affect either his convictions or his sentences ․” Id. (emphasis added); see also Guynn v. State, 861 So.2d 449, 450 (Fla. 1st DCA 2003) (rejecting state and federal double-jeopardy claims as foreclosed under Novaton, because appellant entered negotiated plea). Here, none of the three factors required under Novaton are present that would justify consideration of Appellant's argument based on double jeopardy.

Affirmed.

B.L. Thomas, C.J.

Wetherell and Winsor, JJ., concur.