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Roedel v. State12/29/2000
section 322.34(2) necessarily violates section 322.03(1), because he or she is driving without a valid driver's license. In other words, section 322.03(1) is a necessary lesser included offense of section 322.34(2).
In section 775.021(4)(b), the Legislature expressed its intent to convict and sentence for each criminal offense proven in the course of one criminal episode or transaction, but it listed exceptions. Multiple convictions are not appropriate where the offenses require identical elements of proof, where the offenses are degrees of the same offense as provided by statute, and where a lesser offense has elements which are subsumed by the greater offense. In our view, section 775.021(4)(b) bars a conviction and sentence for a violation of both of these driving statutes, based on the same conduct or driving incident.
The next question is whether this court may reverse one of the convictions because, in this case, Roedel entered pleas to these offenses. In Novaton v. State, 634 So.2d 607 (Fla. 1994), the defendant entered into a plea agreement and pled guilty to multiple charges and agreed to multiple sentences. Two of the convictions would have been barred by double jeopardy principles set forth in Cleveland v. State, 587 So.2d 1145 (Fla. 1991). The supreme court held that since the defendant did more than merely enter pleas to the charges, but additionally bargained with the state to eliminate the possibility of being sentenced to life without parole as a habitual violent felony offender, he waived his double jeopardy claims.
In this case, Roedel's plea bargain for 36 months of probation was not acceptable to the court. When he ultimately tendered his no contest pleas and they were accepted, there was no plea bargain. In these circumstances, a double jeopardy or statutory bar argument may be raised if it is apparent from the record, and there is nothing in the record to indicate a waiver of the double jeopardy or statutory bar violation. See Novaton, 634 So.2d at 609. This type of error may also be raised for the first time on appeal. See State v. Johnson, 483 So.2d 420 (Fla. 1986); Ford v. State, 749 So.2d 570 (Fla. 5th DCA 2000). Accordingly, we vacate the conviction and sentence for the lesser offense of driving without a valid license. We also note conflict with Lanier v. State, supra.
AFFIRMED in part; Judgment REVERSED; Sentence VACATED as to the Offense of Driving Without a Valid License.
THOMPSON, CJ., and GRIFFIN, J., concur.
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