In Anucinski v. State (SC12-1281), the Florida Supreme Court held that in cases where the trial court has erred and adjudicated a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct, as prohibited by section 812.025, Florida Statutes, the trial court has discretion as to which of the sentences to vacate.

Anucinski was charged in 2009 with one count of grand theft and one count of dealing in stolen property. She entered a plea of guilty or no contest to both. She did not object at the time that this violated section 812.025 and the trial court ordered that the sentences for each crime be served concurrently. On appeal, the Second District remanded the case to the trial court with an order to vacate the lesser conviction of grand theft. The Second District reasoned that when a jury finds a defendant guilty the trial court vacates the lesser charge without engaging in any deliberation and, therefore, the same should apply in plea cases. Anucinski v. State, 90 So. 3d 879 (Fla. 2d DCA 2002).

In a 6-1 decision the Florida Supreme Court rejected this idea and followed their previous decision in Hall v. State, which held where theft and dealing in stolen property are charged, “the trier of fact must […] determine whether the defendant is a common thief who steals property with the intent to appropriate said property […] or whether the defendant traffics or endeavors to traffic in the stolen property…” 826 So. 2d 268, 271 (Fla. 2002). The Florida Supreme Court ruled that when deciding which sentence to vacate, the court must consider whether the defendant is a “common thief” (guilty of the theft charge) or a “trafficker” (guilty of the dealing in stolen property charge). Thus, the decision of which charge to vacate requires discretion and should be handled by the trial court as the finder of fact.