DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARCUS JAMES,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D18-2152

[February 20, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Michael I. Rothschild, Judge; L.T. Case Nos. 15-

010704CF10A, 15-010782CF10A and 15-013070CF10A.

Carey Haughwout, Public Defender, and Timothy Wang, Assistant 

Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Rachael Kaiman, 

Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

In the hope of securing a youthful offender sentence, Marcus James 

entered pleas of no contest to crimes arising in three separate cases. The 

trial judge declined to impose youthful offender sentences. In this appeal, 

we reverse the conviction of one crime on double jeopardy grounds. Also, 

because the trial judge emphasized an improper factor in sentencing, we 

reverse the sentences and remand for resentencing before a different 

judge.

The Crimes

This appeal involves three cases as set forth below.

Burglary of a Dwelling

A residential burglary occurred in November 2013. In 2015, Marcus 

James was identified as the prime suspect based on a fingerprint match. 
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James was charged with burglary of a dwelling in violation of subsections 

810.02(1) and (3), Florida Statutes (2015).

Carjacking and Robbery

In August 2015, a woman walking to her car was approached by a man 

who pointed a black semi-automatic handgun at her. The man said, “If 

you scream, I’ll shoot you!” He then demanded her purse and keys, and 

forced her to the ground while he located her vehicle. The woman 

identified James from a photo array as the man who stole her purse, keys, 

and car. As a result of this incident, James was charged with armed 

carjacking in violation of subsections 812.133(1) and (2)(a), Florida 

Statutes and robbery with a firearm of the victim’s purse and its contents 

in violation of subsections 812.13(1), (2)(a) and 775.087(2)(a)1.c., Florida 

Statutes. 

Grand Theft (Auto) and Aggravated Fleeing or Eluding

The car stolen in the above carjacking was spotted by a license plate 

reader. The police followed the vehicle with lights and sirens activated, 

but the driver did not stop until he crashed. The driver and a passenger 

fled on foot. James was caught and identified as the driver of the stolen 

car. These allegations gave rise to charges of grand theft (auto) in violation 

of subsections 812.014(1)(a), (b) and (2)(c)6., Florida Statutes and

aggravated fleeing or eluding in violation of subsection 316.1935(2), 

Florida Statutes.

Defendant’s Open No Contest Plea, Motion for Youthful Offender 

Sanctions, and Sentencing

James was sixteen years old when he committed the burglary and had 

just turned eighteen when he was caught driving the stolen car. Three 

weeks before his twenty-first birthday, his attorney filed motions for 

youthful offender sanctions pursuant to Chapter 958, Florida Statutes. 

The motions stated that James “would benefit from the rehabilitative 

aspects of the sanctions permitted by the Florida Youthful Offender Act.”

At the plea conference, James pled no contest to all of the pending 

charges. The judge advised him of the potential sentences for each charge.

In each case, defense counsel stipulated to the factual basis for 

purposes of the plea and waived the defendant’s right to a presentence 

investigation. The judge accepted the defendant’s no contest pleas and 
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deferred sentencing pending his decision on the motion for youthful 

offender sanctions.

The parties agreed that James qualified for youthful offender sanctions 

pursuant to Chapter 958. The defense attorney argued in support of his 

motion, pointing out that James was very young when the offenses 

occurred; that he had a good family support system (many family members 

were in the courtroom); and that while in custody he had earned his GED.

Defense counsel’s primary argument was that James was innocent of 

the armed carjacking and robbery charges. He told the court that his 

client maintained his innocence; that the firearm was never recovered; and 

that the victim’s identification was flawed because James did not match 

her description of the suspect (i.e., he did not have dreadlocks). According 

to his attorney, James was entering a plea to those charges solely because 

he needed to be sentenced before his twenty-first birthday to qualify as a 

youthful offender.

The state opposed a youthful offender sentence. The state highlighted 

James’s prior juvenile felonies and misdemeanors. The state noted that 

James was not taking responsibility for the crime even though the victim 

identified him just two days after the carjacking occurred. The state asked 

the court to deny the motion for youthful offender sanctions “considering

how serious this case is.”

The judge asked if the defendant had any other arguments in support 

of his motion, and defense counsel told the court that James was a juvenile 

and was terrified. He said, “There’s issues concerning the armed robbery 

case but he is pleading.”

From the bench, the court announced that it was denying the 

defendant’s motion for youthful offender sanctions. In part, the court 

explained: 

First, as to [the armed carjacking and robbery case], it doesn’t 

sound like Mr. James has taken any responsibility. He’s 

plead[ed] to this case by virtue of this plea. He’s admitted to 

having committed this crime. He has a history here. He cut 

off his monitor while he was on release. The court is going to 

deny the youthful offender sentence.

The court then adjudicated James and imposed these concurrent 

sentences:
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Case No. Count Sentence

15-13070 Burglary Unoccupied Dwelling 15 years

15-10782 Carjacking (Armed) 15 years

15-10782 Robbery (Firearm) 15 years

15-10704 Grand Theft (Auto) 114.3 months

15-10704 Aggravated Fleeing or Eluding 114.3 months

Someone in the courtroom said, “That’s bullshit. That’s bullshit. That’s 

bullshit, brother.” Defense counsel asked that the family’s reaction be 

noted for the record, and the court responded to the attorney:

Mr. Curry, you could have had a trial. You could have 

required the State to prove its case. Mr. James chose to plea. 

I accepted his plea knowingly, intelligently and voluntary. He 

took responsibility for his actions in terms of the plea, and 

then you stood here today as his attorney and represented on 

his behalf that he didn’t do the crime to which he just pled. 

He didn’t have to plea. No one forced him to plea, he 

acknowledged that.

He’s admitted to putting a gun in a woman’s face, taking her 

purse and her car with a firearm. Okay. That’s the Court’s 

sentence. I’m sorry that the family is upset. Maybe if he was 

provided some services when he was 13 – 14 – 15 years old 

committing crimes, he wouldn’t find himself in this position 

today. But apparently the fact that he was committing 

burglaries when he was 15, possessing drugs, stealing things, 

disturbing school functions wasn’t enough to get him services

as a juvenile and now we find ourself (sic) here today. 

So if there’s any bullshit in this courtroom [it] is the bullshit 

of putting a gun in a woman’s face and Mr. James will –

At that point, the judge was interrupted again by someone in the 

courtroom and he abruptly concluded the hearing.

The conviction for grand theft auto must be vacated because it 

violated double jeopardy

As the state concedes, we must vacate the conviction for grand theft of 

the same vehicle that was involved in the carjacking.
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“A defendant’s double jeopardy rights are violated when he is convicted 

of two offenses which require identical elements of proof.” Ortiz–Medina v. 

State, 126 So. 3d 1183, 1183 (Fla. 4th DCA 2012) (internal quotation 

marks and citation omitted). But, “the prohibition against double jeopardy 

does not prohibit multiple convictions and punishments where a 

defendant commits two or more distinct criminal acts.” Hayes v. State, 

803 So. 2d 695, 700 (Fla. 2001). “Although a guilty plea and adjudication 

of guilt generally preclude a later double jeopardy attack, an exception 

applies when, as in this case, there is a general or open plea, the double 

jeopardy is apparent from the face of the record, and there is nothing in 

the record to indicate a waiver of double jeopardy.” Bailey v. State, 21 So. 

3d 147, 149 (Fla. 5th DCA 2009).

“For double jeopardy purposes lesser included offenses are tantamount 

to the greater offense charged if all the constituent essential elements of 

such lesser offenses are included within the elements of such greater 

offense.” Bell v. State, 437 So. 2d 1057, 1058 (Fla. 1983). Here, grand 

theft auto is a lesser included offense of carjacking because all of the 

essential elements of grand theft auto are also elements of carjacking. 

Fryer v. State, 732 So. 2d 30, 33 (Fla. 5th DCA 1999) (stating that “[e]ach 

of the statutory elements of grand theft auto are statutory elements of the 

offense of carjacking.”).

Our recent opinion in Palmer v. State, 254 So. 3d 426 (Fla. 4th DCA 

2018), is directly on point. There, the defendant carjacked a vehicle and 

was apprehended two days later driving the stolen car. He was convicted 

of grand theft auto and armed carjacking. Id. at 427. In Palmer, as here, 

the state conceded that grand theft auto was a lesser included offense of 

carjacking, and that the carjacking offense subsumed the later grand theft 

auto offense. Id. We accepted the state’s concession of error, holding:

While the police found the defendant with the vehicle two days 

after the carjacking occurred, the defendant only took one

vehicle on one occasion. His grand theft auto charge was a 

lesser included offense of his carjacking charge. Because 

these charges resulted from a single criminal act, convictions 

on both of them violate double jeopardy.

Id. at 427–28.

As in Palmer, this case involves one vehicle taken on one occasion. The 

charges resulted from a single criminal act and all of the elements of grand 

theft auto are included in the crime of carjacking. As a result, convictions 
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for both grand theft auto and carjacking violated the defendant’s right to 

be free from double jeopardy.

“When an appellate court determines that dual convictions are 

impermissible, the appellate court should reverse the lesser offense 

conviction and affirm the greater.” Pizzo v. State, 945 So. 2d 1203, 1206 

(Fla. 2006). We therefore reverse the conviction for grand theft auto and 

affirm the conviction for carjacking.1

The trial court erred by penalizing appellant at sentencing for 

maintaining his innocence of the carjacking charges

As the state concedes, the trial court erred by penalizing James at 

sentencing for maintaining his innocence of the carjacking charge.

Here, in entering his plea, James explained why he was entering his 

plea of no contest, even though he maintained his innocence of the 

carjacking charge. “While a sentencing court has wide discretion as to the 

factors it may consider in imposing a sentence, it is constitutionally 

impermissible for it to consider the fact that a defendant continues to 

maintain his innocence and is unwilling to admit guilt.” Ritter v. State, 

885 So. 2d 413, 414 (Fla. 1st DCA 2004); see Aliyev v. State, 835 So. 2d 

1232, 1234 (Fla. 4th DCA 2003).2 “[R]e-sentencing is required even if a 

defendant’s refusal to admit guilt was but one of several factors considered 

by the court in imposing sentence.” Johnson v. State, 948 So. 2d 1014, 

1017 (Fla. 3d DCA 2007). 

We reverse the sentences imposed in this case and remand the case (1) 

to vacate the grand theft conviction and dismiss the charge and (2) for 

resentencing before a different judge. See Whitmore v. State, 27 So. 3d 

168, 172 (Fla. 4th DCA 2010). James is also entitled to a corrected 

scoresheet reflecting our reversal of the grand theft auto conviction. See 

Fernandez v. State, 199 So. 3d 500, 502 (Fla. 2d DCA 2016).

1 We reject James’s argument that his convictions for armed carjacking and 

robbery violated double jeopardy. See Cruller v. State, 808 So. 2d 201, 202 (Fla. 

2002); Jacobs v. State, 162 So. 3d 29, 31 (Fla. 4th DCA 2014).

2 Recognized exceptions to the general rule do not apply here. See § 

921.0026(2)(j), Fla. Stat. (2017) (which allows a sentencing court to grant a 

downward departure when, among other things, “the defendant has shown 

remorse”); Rankin v. State, 174 So. 3d 1092, 1097 (Fla. 4th DCA 2015); Corbitt v. 

State, 220 So. 3d 446, 450 (Fla. 5th DCA 2016) (providing that a lack of remorse 

may be considered at sentencing where a defendant “freely and voluntarily enters 

a plea and admits his involvement in the crimes or presents testimony regarding 

his involvement in the crimes during trial.”).
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Affirmed in part, reversed in part, and remanded for resentencing.

MAY and DAMOORGIAN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.