213 So. 3d 920
Fla. Dist. Ct. App.2017Background
- Appellant broke into a known victim’s home at night, masked and armed with a knife, attempted to sexually batter her, and put the knife to her face/neck; the victim fought him off and later identified him. Appellant confessed and sent letters to the victim before trial.
- Charges: Count 1 — Burglary of a dwelling with an assault or battery while armed/masked (jury found he was armed with a deadly weapon); Count 2 — Aggravated assault with a deadly weapon while masked; Count 3 — Attempted sexual battery with great force/deadly weapon.
- Jury convicted on all counts; sentencing initially produced life for burglary, consecutive terms for aggravated assault and attempted sexual battery (attempted sexual battery later reduced on direct appeal).
- Appellant filed a timely Rule 3.850 motion alleging trial counsel was ineffective for failing to raise double jeopardy; trial court denied relief, reasoning no prejudice because appellant already received a life sentence.
- This court agreed appellant need not show increased incarceration to demonstrate prejudice in a double jeopardy Rule 3.850 claim, but affirmed on the merits: aggravated assault and attempted sexual battery are not subsumed within burglary with an assault or battery when analyzed by statutory elements alone.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether convictions for aggravated assault and attempted sexual battery are subsumed within burglary with an assault or battery (double jeopardy) | Appellant: aggravated assault and attempted sexual battery were subsumed by burglary with assault/battery and therefore convictions violate double jeopardy | State: statutory-elements test (§775.021(4)(a)) controls; offenses require different elements and Legislature intended separate punishments | Held: No double jeopardy violation; aggravated assault and attempted sexual battery are not subsumed within burglary with an assault or battery when analyzed by statutory elements alone |
| Whether appellant was prejudiced by counsel’s failure to raise double jeopardy | Appellant: counsel’s omission caused prejudice warranting relief | State: no prejudice because appellant already serving life sentence | Held: Trial court erred to treat prejudice as requiring a longer sentence, but relief denied because the underlying double jeopardy claim fails on the merits |
| Whether reviewing courts may consider charging language or proof at trial in subsumption analysis | Appellant: points to overlapping allegations/proof (weapon used in both offenses) | State: analysis must be without regard to accusatory pleading or proof; look to statutory elements and full range of proscribed conduct | Held: Use statutory-elements test without regard to charging papers or trial proof |
| Other sentencing claims (improper factors) | Appellant: court relied on improper sentencing factors | State: — | Held: Affirmed without discussion on this claim |
Key Cases Cited
- Roughton v. State, 185 So.3d 1207 (Fla. 2016) (statutory-elements test and look to full range of proscribed conduct)
- Valdes v. State, 3 So.3d 1067 (Fla. 2009) (legislative intent and elements analysis in double jeopardy contexts)
- State v. Johnson, 483 So.2d 420 (Fla. 1986) (prejudice not required to show increased incarceration in double jeopardy postconviction claim)
- McCloud v. State, 577 So.2d 939 (Fla. 1991) (subsumed-within exception requires the greater offense to necessarily include the lesser)
- Blevins v. State, 756 So.2d 1052 (Fla. 4th DCA 2000) (simple assault/battery necessarily included in burglary with assault/battery; distinguishes aggravated offenses)
- Washington v. State, 752 So.2d 16 (Fla. 2d DCA 2000) (double jeopardy does not bar burglary-with-battery and aggravated battery convictions)
- Baldwin v. State, 790 So.2d 434 (Fla. 1st DCA 2000) (contrary holding that aggravated assault with firearm was subsumed in armed burglary with assault)
- Nardi v. State, 779 So.2d 596 (Fla. 4th DCA 2001) (attempted sexual battery and burglary-with-battery do not violate double jeopardy)