Florida courts have long recognized that double jeopardy principles prevent a conviction for grand theft and organized fraud growing out of the same conduct. Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006).
When double jeopardy principles preclude conviction of two crimes, the conviction of the lesser crime should be set aside. In relation to organized fraud and grand theft, the lesser offense is grand theft and therefore the grand theft charge and any sentence thereunder should not stand.
In the case of Muhammad v. State, 36 Fla. L. Weekly D1916b (Fla. 3d DCA August 31, 2011), the defendant was convicted of both organized fraud and grand theft based upon the same conduct. After the jury returned its verdicts of guilty, the state nolle prossed the organized fraud conviction and allowed the four counts of grand theft to stand.
On appeal, the district court ruled that the state has no power to nolle pros a charge after double jeopardy attached and therefore it had no authority to nolle pros the organized fraud conviction after the jury was sworn. Therefore the state's election to nolle pros the defendant's organized fraud conviction after the verdict had no effect. The case was remanded to the trial court to set aside the four convictions of grand theft. The trial court was further directed to adjudicate and sentence the defendant on the organized fraud conviction.
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