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Rodriguez v. State2/25/2004
utes. Using these two tests, the supreme court concluded that where only one death was caused an offender may not be punished for both DWI manslaughter and vehicular homicide. Houser, 474 So.2d at 1197.
This rule retains viability today as our supreme court recently stated in Gordon:
In a similar argument, Gordon highlights the principle that convictions for both premeditated murder and felony murder are impermissible when only one death occurred. See Goss v. State, 398 So.2d 998, 999 (Fla. 5th DCA 1981). We have held repeatedly that section 775.021 did not abrogate our previous pronouncements concerning punishments for singular homicides. See Goodwin v. State, 634 So.2d 157-58 [(Fla.1994)] (Grimes, J. concurring) ("I believe that the Legislature could not have intended that a defendant could be convicted of two crimes of homicide for killing a single person."); State v. Chapman, 625 So.2d 838, 839 (Fla.1993); Houser v. State, 474 So.2d 1193, 1196 (Fla.1985) (noting that "only one homicide conviction and sentence may be imposed for a single death"). Indeed, this principle is based on notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a singular killing.
Gordon, 780 So.2d at 25 (three citations omitted). Applying the rule set forth in Houser and reaffirmed in Gordon, we hold the trial court erred in sentencing Mr. Rodriguez for both DUI manslaughter and third-degree murder for a single death.
However, our analysis does not end at this point. In Kurtz v. State, 564 So.2d 519 (Fla. 2d DCA 1990), disapproved of on other grounds in Novaton v. State, 634 So.2d 607 (Fla.1994) (holding that a defendant's acceptance of sentencing pursuant to a bargained for plea agreement waives any double jeopardy violations), we determined that it was necessary to vacate not only the sentence but *646 also the accompanying adjudication of guilt so as to avoid scoring " 'unsentenced' convictions." 564 So.2d at 521. We have continued to follow this reasoning, noting that "this court has recognized that, subsequent to the implementation of sentencing guidelines, appellate courts generally vacated 'both the adjudication of guilt and the sentence associated with a second offense which present[ed] a double jeopardy problem.' " Collins v. State, 821 So.2d 1231, 1232 (Fla. 2d DCA 2002) (citing Kurtz, 564 So.2d at 521).
Accordingly, we affirm in part, reverse in part, and remand. The adjudications and sentences for counts three through seven and count nine shall stand, but we direct that the trial court strike the adjudication for count two, and the sentences for counts one, two, and eight.
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