Gracia v. State
2012 Fla. App. LEXIS 17341
| Fla. Dist. Ct. App. | 2012Background
- Appellant threatened another person with a handgun and was convicted of aggravated assault with a firearm (count I) and unlawful possession of the same firearm during the commission of a felony (count V).
- The double jeopardy issue was raised to question the validity of multiple judgments for the same conduct.
- The court held that the convictions and sentences for both offenses cannot stand under the double jeopardy standard as applied to multiple punishments for the same conduct.
- Ordinarily, the remedy would be to set aside the lesser offense, but the trial judge imposed a greater sentence on the supposedly lesser offense due to firearm involvement.
- The court favored a remedy aligned with legislative intent by dropping the possession charge and affirming the aggravated assault conviction.
- The possession charge would otherwise create an unwarranted windfall for the defendant, given the minimum-maximum sentencing scheme for firearm-related offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do the two convictions violate double jeopardy? | State argues dual convictions punish the same conduct unlawfully. | Schwartz argues no improper windfall; structure of sentences may differ from the counts. | Yes; the dual convictions for the same conduct violate double jeopardy. |
| What correction remedies the double jeopardy problem most in line with the legislature's intent? | State would typically set aside the lesser offense. | Schwartz contends the windfall issue should be avoided by proper restructuring, not necessarily the same standard rule. | Drop the possession charge and affirm the aggravated‑assault judgment to reflect legislative intent. |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (1932) (establishes the double jeopardy test for multiple punishments)
- Cleveland v. State, 587 So.2d 1145 (Fla.1991) (double jeopardy considerations in Florida sentencing)
- Vizcon v. State, 771 So.2d 3 (Fla.3d DCA 2000) (preservation and vacature principles in multiple judgments)
- Nicholson v. State, 757 So.2d 1227 (Fla.4th DCA 2000) (failure to raise issue below can affect double jeopardy claims)
- Mendenhall v. State, 48 So.3d 740 (Fla.2010) (legislature's intent in firearm sentencing and consecutive terms)
- McKinney v. State, 66 So.3d 852 (Fla.2011) (legislative intention governs double jeopardy application)
- Diaz v. Rodriguez, 384 So.2d 906 (Fla.3d DCA 1980) (preservation doctrine and avoidance of error in first place)