Delgado v. State
174 So. 3d 1071
Fla. Dist. Ct. App.2015Background
- Delgado was charged with five counts: two robberies (counts 1,3), two aggravated assaults (counts 2,4), and possession of drug paraphernalia (count 5).
- After a trial on counts 1 and 2 (single victim), Delgado was convicted of the lesser-included offenses of robbery (count 1) and assault (count 2) and sentenced (robbery: 8 years prison + community control/probation; assault: 60 days jail concurrent).
- One month later Delgado pleaded no contest in a negotiated plea to lesser-included robbery (count 3) and assault (count 4); those sentences (6 years and 60 days) were ordered concurrent with each other and with the prior sentences.
- Delgado appealed; appellate counsel raised only a judgment-of-acquittal issue. This Court summarily affirmed on direct appeal.
- Delgado petitioned for habeas corpus, claiming appellate counsel was ineffective for failing to raise that the dual convictions for robbery and assault violated double jeopardy.
- The State conceded the double jeopardy issue as to the convictions from the trial counts (1 and 2) but not to the plea counts (3 and 4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was ineffective for not raising a double jeopardy claim from the trial convictions | Delgado: appellate counsel should have argued robbery and assault convictions from the same episode violate double jeopardy | State: no ineffective assistance because appeal was adequate; waiver may apply to plea counts | Court: Appellate counsel was ineffective as to counts from trial; assault conviction on count 2 must be vacated |
| Whether double jeopardy attack applies to convictions obtained via negotiated plea (counts 3 and 4) | Delgado: dual convictions on plea counts also violate double jeopardy | State: plea waived double jeopardy challenge; negotiated plea removes exception | Court: No double jeopardy relief for plea counts; negotiated plea waived the claim |
| Remedy for double jeopardy violation when both robbery and assault convictions arise from same episode | Delgado: vacatur of the improper conviction | State: concurred as to trial counts | Court: Vacation of the lesser offense (assault) on count 2; remand to vacate judgment and sentence for that count |
| Whether habeas relief should be granted overall | Delgado: seeks writ based on ineffective assistance of appellate counsel | State: limited concession; opposes relief on plea counts | Court: Writ granted in part (vacate count 2 assault), denied in all other respects |
Key Cases Cited
- Pope v. Wainwright, 496 So.2d 798 (Fla. 1986) (standard for ineffective assistance on appeal requires serious omission and prejudice)
- Novaton v. State, 634 So.2d 607 (Fla. 1994) (general plea ordinarily precludes later double jeopardy attack; exception when violation is apparent and no waiver)
- Olivard v. State, 831 So.2d 823 (Fla. 4th DCA 2002) (remedy for double jeopardy through dual convictions is to vacate the lesser offense)
- Latimer v. State, 44 So.3d 1239 (Fla. 5th DCA 2010) (convictions for robbery and simple assault from same episode violate double jeopardy)
- Bell v. State, 114 So.3d 229 (Fla. 5th DCA 2013) (recognizing separate robbery and assault convictions can violate double jeopardy)
- Novaton v. State, 634 So.2d 607 (Fla. 1994) (plea-waiver principles regarding double jeopardy)