129 So. 3d 1104
Fla. Dist. Ct. App.2013Background
- Rosado appeals after jury found him guilty on multiple offenses arising from a 2008 kidnapping, burglary with an assault, carjacking, aggravated battery, aggravated assault, and felony battery.
- The State proceeded with counts including sexual battery (lesser-included as battery), kidnapping, burglary with an assault, carjacking, aggravated battery, aggravated assault, and felony battery; the jury convicted on counts two through seven and the lesser-included battery on count one.
- DNA and fingerprint evidence linked Rosado to the attack and to the victim’s car; the victim identified him in a photographic lineup.
- The State initially offered a 25-year plea; Rosado reopened discussions but the State refused to nol pros the sexual battery charge, leading to trial and a 40-year sentence.
- Rosado argues double jeopardy violations and vindictive sentencing; the court vacates some convictions and affirms the rest, and addresses preservation of vindictive-sentencing claims.
- This rehearing substitutes the opinion, affirming in part and reversing in part, with the principal holdings that certain convictions are vacated for double jeopardy and the vindictive-sentencing claim is not preserved as a sentencing error under Rule 3.800(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy—burglary with an assault vs aggravated assault | Rosado | Rosado | Aggravated assault with intent to commit a felony vacated |
| Double jeopardy—aggravated battery and misdemeanor batteries | Rosado | Rosado | Two misdemeanor batteries vacated |
| Vindictive sentencing claim | Rosado | State | Vindictive sentence not proven; not a Rule 3.800(b) sentencing error; sentence affirmed |
Key Cases Cited
- Olivard v. State, 831 So.2d 823 (Fla. 4th DCA 2002) (double jeopardy when battery and aggravated battery occur in same episode)
- Arnold v. State, 514 So.2d 419 (Fla. 2d DCA 1987) (battery as lesser included offense of aggravated battery)
- Jackson v. State, 983 So.2d 562 (Fla. 2008) (sentencing errors subject to Rule 3.800(b) are enumerated; not all sentencing errors)
- Brannon v. State, 850 So.2d 452 (Fla.2003) (preservation of sentencing errors under rule 3.800(b))
- Allende v. State, 882 So.2d 472 (Fla.5th DCA 2004) (vindictive sentencing is a sentencing error that must be preserved)
- Maddox v. State, 760 So.2d 89 (Fla.2000) (fundamental sentencing error includes extending incarceration)
- Wilson v. State, 845 So.2d 142 (Fla.2003) (totality of circumstances governs vindictiveness presumptions)
- Jackson v. State, 983 So.2d 562 (Fla.2008) (sentencing errors; the list of examples)
- Pierre v. State, 114 So.3d 319 (Fla.4th DCA 2013) (vindictive sentencing not a Rule 3.800(b) error)
- Mendez v. State, 28 So.3d 948 (Fla.2d DCA 2010) (vindictive sentencing not a Rule 3.800(b) error)