Wiles v. State , 2016 Fla. App. LEXIS 11737 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LORENZO WILES, )
)
Appellant, )
)
v. ) Case No. 2D15-3811
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed August 3, 2016.
Appeal from the Circuit Court for
Hillsborough County; Gregory P. Holder,
Judge.
Daniel M. Hernandez of Daniel M.
Hernandez, P.A., Tampa, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Bilal A. Faruqui, Assistant
Attorney General, Tampa, for Appellee.
SLEET, Judge.
Lorenzo Wiles appeals his judgment and sentences entered after this
court granted in part and denied in part his petition alleging ineffective assistance of
appellate counsel. See Wiles v. State, 162 So. 3d 342 (Fla. 2d DCA 2015). Because
the evidence adduced at trial reflected that Wiles participated in a single conspiracy with
multiple criminal objectives, his convictions for both conspiracy to traffic in cocaine and
conspiracy to commit racketeering violate the prohibition against double jeopardy.
Accordingly, we reverse Wiles' conviction for conspiracy to commit racketeering.
As set forth in Wiles, 162 So. 3d at 343, a jury found Wiles guilty of
violating the Florida RICO (Racketeer Influenced and Corrupt Organization) Act,
trafficking in cocaine, conspiracy to commit racketeering, and conspiracy to traffic in
cocaine. The trial court sentenced him to concurrent terms of twenty-five years' prison
for each conviction with fifteen-year mandatory minimum terms for the conspiracy to
traffic in cocaine and trafficking in cocaine convictions. Id.; see also §
893.135(1)(b)(1)(c), Fla. Stat. (2011). After this court per curiam affirmed his
convictions and sentences, see Wiles v. State, 129 So. 3d 372 (Fla. 2d DCA 2013)
(table decision), Wiles filed a petition pursuant to Florida Rule of Appellate Procedure
9.141(d), alleging that appellate counsel was ineffective for failing to argue that his
conspiracy convictions violated double jeopardy because he was part of a single
conspiracy with multiple objectives, which included racketeering and trafficking in
cocaine. This court agreed, granted the petition, and remanded for the circuit court to
"appoint an appellate attorney to file a brief limited to the [double jeopardy] issue"
because the record was insufficient to show whether the evidence presented at trial
established "only a single conspiracy with multiple objectives." Wiles, 162 So. 3d at
343-44. This appeal followed.
This court has repeatedly held that convictions for multiple conspiracy
charges violate double jeopardy when the State's trial evidence reflects that the
defendant participated in a single conspiracy with multiple criminal objectives. See
Vasquez v. State, 111 So. 3d 273, 276-77 (Fla. 2d DCA 2013); Mathes v. State, 106 So.
3d 73, 74 (Fla. 2d DCA 2013); Negron Gil de Rubio v. State, 987 So. 2d 217, 219 (Fla.
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2d DCA 2008); Durden v. State, 901 So. 2d 967, 968 (Fla. 2d DCA 2005). Determining
whether the State has proven a single conspiracy or multiple conspiracies depends on
whether there was evidence of one or more agreements. Negron Gil de Rubio, 987 So.
2d at 219. "[A] single conspiracy may have for its object the violation of two or more
criminal laws or two or more substantive offenses. The conspiracy is still one offense,
no matter how many repeated violations of the law may have been the object of the
conspiracy." Durden, 901 So. 2d at 968 (quoting Epps v. State, 354 So. 2d 441, 442
(Fla. 1st DCA 1978)). "The conspiracy continues to exist until consummated,
abandoned, or otherwise terminated by some affirmative act." Rios v. State, 19 So. 3d
1004, 1006 (Fla. 2d DCA 2009) (quoting Durden, 901 So. 2d at 968).
In the information, the State alleged that the same thirteen individuals
conspired to commit racketeering and trafficking in cocaine. The dates alleged in the
trafficking conspiracy count were subsumed within the dates alleged in the racketeering
conspiracy count. Furthermore, one of the alleged criminal activities that formed the
basis for the racketeering conspiracy count was trafficking in cocaine. See Mathes, 106
So. 3d at 74-75 ("[T]he conspiracy to deliver heroin was subsumed into the conspiracy
to commit racketeering because (1) the charge of conspiracy to commit racketeering
named a conspiracy to deliver heroin as an objective of the racketeering conspiracy, (2)
the same individuals were implicated in both offenses, and (3) the two conspiracies
were alleged to have occurred during the same time frame."). During opening
statement and closing argument the State consistently referred to a single enterprise or
conspiracy, even though Wiles faced two different conspiracy charges.
On appeal the State argues that because the evidence at trial showed that
Wiles and his fellow conspirators attempted to buy a large amount of cocaine on two
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separate occasions, Wiles was a part of two separate conspiracies. However, the fact
that the conspirators made two attempts to purchase cocaine is not enough to show that
they participated in two separate agreements to commit criminal offenses. The
evidence adduced at trial reflects that Wiles took part in a single conspiracy to
purchase, possess, and distribute large quantities of cocaine. As in Durden and Negron
Gil de Rubio, the State offered no evidence at trial and no argument on appeal that the
original conspiracy "was consummated, abandoned, or otherwise terminated prior to the
formation of a second conspiracy." Negron Gil de Rubio, 987 So. 2d at 219; see also
Durden, 901 So. 2d at 969.
Because the lesser punishable offense was for conspiracy to commit
racketeering, we reverse and remand for the trial court to vacate that sentence.
However, we affirm Wiles' remaining convictions and sentences in all other respects.
Affirmed in part; reversed in part; remanded with instructions.
CASANUEVA and SALARIO, JJ., Concur.
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