McGhee v. State
133 So. 3d 1137
Fla. Dist. Ct. App.2014Background
- McGhee was convicted of burglary of a dwelling with assault/battery and special firearm-related findings, plus aggravated assault with a firearm and battery (domestic violence).
- McGhee challenged the denial of his motion for judgment of acquittal on burglary with assault/battery, arguing ineffective assistance for not requesting a defense instruction on the right to enter the dwelling.
- McGhee contended that his multiple convictions for burglary with assault, aggravated assault with a firearm, and battery violated double jeopardy since the same victim and incident supported all offenses.
- The trial court’s rulings: affirmed the burglary conviction and allowed an avenue to pursue 3.850 relief; did not pursue reversal on other grounds at this stage.
- The court reversed the aggravated assault with a firearm conviction as subsumed within burglary with assault while armed with a firearm, citing double jeopardy principles and several Florida appellate decisions.
- The court also reversed the battery conviction for the same reason (duplication in a single episode) and remanded to delete those convictions from the judgment; final disposition: affirmance in part, reversal in part, remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance claim on jury instruction | McGhee argues defense instruction on right to enter the dwelling was omitted. | McGhee asserts counsel failed to request essential instruction, impacting burglary conviction. | Affirmed as to burglary; remanded for 3.850 relief possibilities. |
| Double jeopardy and subsumption of offenses | Burglary with assault, aggravated assault with firearm, and battery involve same elements/victim; violates double jeopardy. | N/A (court addresses arguments presented). | Aggravated assault with firearm and battery reversed; remanded to delete those convictions. |
Key Cases Cited
- Green v. State, 120 So.3d 1276 (Fla. 1st DCA 2013) (aggravated assault with firearm subsumed by burglary with assault while armed)
- Estremera v. State, 107 So.3d 511 (Fla. 5th DCA 2013) (double jeopardy concerns where elements overlap)
- White v. State, 753 So.2d 668 (Fla. 1st DCA 2000) (double jeopardy analysis for overlapping burglary and related offenses)
- Torna v. State, 742 So.2d 366 (Fla. 3d DCA 1999) (duplex double jeopardy concerns in burglary with battery and battery)
- West v. State, 21 So.3d 916 (Fla. 5th DCA 2009) (double jeopardy principle in burglary and battery convictions)
- Babrow v. State, 62 So.3d 1205 (Fla. 4th DCA 2011) (double jeopardy implications in related offenses)