Aiken v. StateAiken v. State
PER CURIAM.
Conray Aiken appeals his judgment and sentences. Aiken argues that his conviction for aggravated assault with a firearm is barred by the Double Jeopardy Clause because he was also convicted of sexual battery with a firearm and both convictiоns resulted from the same incident. We affirm Aiken‘s convictions, but in doing so we recede from the language in Blanchard v. State, 634 So.2d 1118 (Fla. 2d DCA 1994), which indicates that double jeopardy prohibits a conviction fоr a permissive lesser included offense if a defendant has also been conviсted of the greater offense arising out of the same criminal act.
In the presеnt case, the State‘s evidence at trial showed that Aiken went to his exgirlfriend‘s home tо babysit their daughter. While there, he punched his ex-girlfriend, pointed a gun at her, ordered hеr to remove her clothes, and raped her on the couch. He then ordered her into the bedroom where he raped her twice more. Aiken was convicted of aggravated assault with a firearm, sexual battery with a firearm, two counts of sexual battery involving the use of threats or force, and battery. The issue outlined above is Aikеn‘s sole issue on appeal.
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements оf which are subsumed by the greater offense.
It is the third exception that goes to lesser included offenses. The supreme court in State v. McCloud, 577 So.2d 939, 941 (Fla. 1991), held that “[a]n offense is a lesser-included оffense for purposes of
The same act that constitutes the crime of false imprisonment (grabbing and holding the hand of the victim), also constitutes the crime of battery. Thus, it appears that the battery in this case is a category two lesser included offеnse of false imprisonment. Therefore, it was error to adjudicate Blanchard guilty of the battery count.
Blanchard, 634 So.2d at 1119. The Blanchard court cited to Sirmons v. State, 634 So.2d 153 (Fla.1994), for the proposition that Blanchard could not be conviсted of both battery and false imprisonment. However, Sirmons does not interpret the third exception outlined in
The supreme court in Gibbs v. State, 698 So.2d 1206 (Fla.1997), again applied the core offense test in holding that Gibbs’ convictions for both trafficking possession of cocaine and possession of cocaine, both offenses involving the same packages of cocaine, were barred by double jeopardy. The court reasoned that trafficking possession was a degree enhancement of the crime of possession. The Gibbs court, however, stated, “We adhere to our decision in McCloud.” Gibbs, 698 So.2d at 1209. The court specifically noted that the holding in McCloud could coexist with the holding in Gibbs. Thus, the Gibbs court reaffirmed McCloud, which held that the exception outlined in
In the present case, Aiken‘s convictions do not сome under any of the exceptions outlined in
Affirmed.
PATTERSON, C.J., and CAMPBELL, THREADGILL, PARKER, ALTENBERND, BLUE, FULMER, WHATLEY, NORTHCUTT, GREEN, CASANUEVA, SALCINES, STRINGER, and DAVIS, JJ., Concur.