STATE OF CONNECTICUT v. DARRELL TINSLEY
(AC 41975)
Connecticut Appellate Court
May 12, 2020
DiPentima, C. J., and Bright and Devlin, Js.
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Syllabus
The defendant, who previously had been convicted of the crimes of manslaughter in the first degree and risk of injury to a child, appealed to this court from the judgment of the trial court denying his motion to correct an illegal sentence. The defendant claimed that the trial court improperly concluded that his conviction did not violate the constitutional guarantee against double jeopardy because the defendant failed to demonstrate that both offenses occurred during the same transaction and the crime of risk of injury to a child was not a lesser included offense of manslaughter in the first degree as charged. Held that the trial court improperly denied the defendant‘s motion to correct an illegal sentence because his right to be free from double jeopardy was violated, the offenses of manslaughter in the first degree and risk of injury to a child arose from the same act or transaction, the long form information having alleged that both crimes occurred on the same day, at the same location, and were perpetrated on the same victim, all of the victim‘s wounds were recent, were inflicted in the same short period of time, and occurred not long before the victim‘s death, including the fatal laceration to the victim‘s liver, and the state‘s theory of the case, presented during trial and its closing argument, was that the defendant inflicted multiple blows to the head, chest and abdomen of the victim over a short period of time, in a singlе, continuous attack; moreover, the offenses of manslaughter in the first degree and risk of injury to a child constituted the same offense, as risk of injury to a child was a lesser included offense of manslaughter in the first degree as charged because it was not possible for the defendant to have committed manslaughter in the first degree as charged by causing the death of the victim by blunt trauma to the abdomen without also impairing the health of the victim by inflicting trauma to his abdomen, as charged in the risk of injury to a child offense; furthermore, there was no authority that would support a conclusion that the legislature intended to specifically authorize multiple punishments under the statutes in question.
Argued December 3, 2019—officially released May 12, 2020
Procedural History
Information charging the defendant with the crimes of capital felony and risk of injury to a child, brought to the Superior Court in the judicial district of Hartford and tried to the jury before Barry, J.; verdict and judgment of guilty of manslaughter in the first degree and risk of injury to a child, from which the defendant appealed to this court, Lavery, C.J., and Shaller and Zarella, Js., which affirmed the judgment of the trial court; thereafter, the trial court, Schuman, J., denied the defendant‘s motion to correct an illegal sentence, and the defendant appealed to this court. Reversed; further proceedings.
Naomi T. Fetterman, for the appellant (defendant).
Melissa L. Streeto, senior assistant state‘s attorney, with whom, on the brief, were Gail P. Hardy, state‘s attorney, and John F. Fahey, supervisory assistant state‘s attorney, for the appellee (state).
Opinion
In affirming the defendant‘s conviction on direct appeal, we concluded that the jury reasonably could have found the following facts. “[T]he victim‘s mother, and the defendant met at an office building in downtown Hartford, where they worked as security personnel. Although the defendant and [the victim‘s mother] had an unstable relationship, they cohabited in a one bedroom apartment along with the [fifteen month old] victim . . . . During the course of the adults’ relationship, individuals who knew the victim noticed a marked change in his behavior when he was in the presence of the defendant. At such times, the victim was timid, withdrawn and afraid of the defendant. The defendant‘s attitude toward the victim ranged from indifference to dislike. When [the victim‘s mother] was no longer able to avail herself of professional child care, the defendant sometimes took care of the victim while [the victim‘s mother] worked.
“Prior to his death, the victim was in good health. On December 8, 1996, between 8 a.m. and 8:30 a.m., the defendant drove [the viсtim‘s mother] to her place of employment. According to [the victim‘s mother], there was nothing wrong with the victim when she went to work. During the morning, [the victim‘s mother] and the defendant spoke by telephone several times concerning the victim. At approximately 11:15 a.m., the defendant telephoned [the victim‘s mother], stating that there was something wrong with the victim and that he did not know what was the matter. The defendant then drove the victim to [the victim‘s mother‘s] place of employment, and from there all three proceeded to the Connecticut Children‘s Medical Center (medical center) in Hartford. They were involved in a motor vehicle accident en route.
“When he arrived at the medical center, the victim was in critical condition because he was not breathing and had little heart activity. The victim died when resuscitation efforts failed. An autopsy revealed bruises on the victim‘s right cheek, left leg and chest, which an associate medical еxaminer from the [O]ffice of the [C]hief [M]edical [E]xaminer determined occurred shortly before the victim‘s death. The injuries were inconsistent with an automobile accident, a twelve inch fall into a bathtub, cardiopulmonary resuscitation or bumping into a fire door, which were explanations offered by the defendant. The victim also suffered significant internal injuries, namely, multiple fresh cranial hemorrhages, a broken rib and a lacerated liver that caused three quarters of his blood to enter his abdominal cavity. According to the associate medical examiner, the victim‘s liver was lacerated by blunt trauma that occurred within [one] hour of death and was the cause of death.
“After the victim died, the defendant was taken to the police station, where he gave a statement and repeatedly denied injuring the victim. The police inspected the apartment where the defendant and victim were alone prior to the viсtim‘s death. They found vomit and feces on the victim‘s clothes, a bedspread and the floor. The victim‘s blood was found on the bathroom door. When he was informed of the autopsy results, the defendant insisted
The state charged the defendant with capital felony in violation of
On August 14, 2017, the self-represented defendant filed a motion to correct an illegal sentence pursuant to
On May 15, 2018, the court issued its memorandum of decision denying the defendant‘s motion to correct an illegal sentence. At the outset of its analysis, the court observed that the double jeopardy clause protects against multiple punishments for the same offense. It then stated: “In determining whether a defendant has been placed in double jeopardy under the multiple pun-ishments prong, the court applies a two step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same оffense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.)
With respect to the first step of the analysis, the court noted that the homicide and risk of injury charges involved the same time, place and victim. The homicide count charged that the victim‘s death had resulted from blunt force trauma to the abdomen, whereas the risk of injury count alleged that the defendant had inflicted multiple traumas to the face, head, chest and abdomen, which caused the laceration of the liver, internal bleeding in the abdomen, a fracture of the tenth rib, and multiple contusions of the face, head, chest and abdomen. The court also observed that the
As an alternative and additional analysis, the court also considered whether the crimes of manslaughter in the first degree and risk of injury constituted the same offense. The court specifically identified the issue as “whether risk of injury as charged was a lesser included offense of manslaughter in the first degree as charged. Stated differently, the issue is whether it was possible to commit manslaughter in the first degree in the manner charged without necessarily committing risk of injury as charged.” The court concluded that such a possibility existed. It explained that the jury could have found that the defendant violated the risk of injury statute as a result of striking the victim in the face, leg or chest. For these reasons, the court denied the defendant‘s motion to correct an illegal sentence.
On June 4, 2018, the defendant filed a motion to reargue and for reconsideration. The defendant claimed, inter alia, that the parties should be afforded the opportunity to address (1) our Supreme Court‘s decision in State v. Porter, 328 Conn. 648, 182 A.3d 625 (2018),6 which had been released after the hearing on the defendant‘s motion to correct an illegal sentence and (2) the evidence underlying the recital of facts by this court in the defendant‘s direct appeal. See State v. Tinsley, supra, 59 Conn. App. 6–7. On June 19, 2018, the court granted the defendant‘s motion to reargue.
The court held a hearing on July 5, 2018. After hearing from the parties, the court denied the relief requested by the defendant. It maintained its conclusion that the defendant had failed to meet his burden of demonstrating that both offenses occurrеd during the same transaction. Specifically, the court stated: “It still seems to me entirely possible that the fatal blows to the ribs, liver, and abdomen could have occurred from a separate blow that was interrupted perhaps by a minute or so before or after trauma was inflicted to the child‘s face and head, which is also alleged in the information. And in that situation it would not clearly be one continuous uninterrupted assault. I acknowledge the defense argument that there‘s no way to actually parse through all this at this time twenty years later, but ultimately it‘s the defendant‘s burden and if we can‘t do that then the defendant has not met his burden.” This appeal followed. Additional facts will be set forth as necessary.
On appeal, the defendant claims that the court improperly denied his motion to correct an illegal sentence. Specifically, he argues that his conviction and punishment for manslaughter in the first degree and risk of injury arose frоm the same transaction and that risk of injury is a lesser included offense of manslaughter in the
We begin by reviewing the relevant legal principles pertaining to a motion to correct an illegal sentence, the applicable standard of review and our double jeopardy jurisprudence. A motion to correct an illegal sentence filed pursuant to
Next, we set forth our standard of review. “Ordinarily, a claim that the trial court improperly denied a defendant‘s motion to correct an illegal sentence is reviewed pursuant to the abuse of discretion standard. . . . A double jeopardy claim, however, presents a question of law, over which our review is plenаry.” (Internal quotation marks omitted.) State v. Bennett, 187 Conn. App. 847, 851, 204 A.3d 49, cert. denied, 331 Conn. 924, 206 A.3d 765 (2019); see also State v. Wade, 178 Conn. App. 459, 466, 175 A.3d 1284 (2017), cert. denied, 327 Conn. 1002, 176 A.3d 1194 (2018).
We turn to the relevant principles regarding the protection against double jeopardy. The double jeopardy clause of the fifth amendment7 prohibits both multiple trials for the same offense and multiple punishments for the same offense in a single trial. See State v. Bennett, supra, 187 Conn. App. 852; see also State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990) (overruled in part on other grounds by State v. Polanco, 308 Conn. 242, 261, 61 A.3d 1054 (2013)), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 162 (1991). The present case concerns the latter prohibition. Simply stated, “[w]ith respect to cumulative sentences imposed in a single trial, the [d]ouble [j]eopardy [c]lause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Ferguson, 260 Conn. 339, 361, 796 A.2d 1118 (2002).
“Double jeopardy analysis in the context of a single trial is a [two step] process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Bennett, supra, 187 Conn. App. 852. “At step one, it is not uncommon that we look to the evidence at trial and to the state‘s theory of the case . . . in addition to the information against the defendant, as amplified by the bill of particulars. . . . If it is determined that the charges arise out of the same act or transaction, then the court proceeds to step two, where it must be determined whether the charged crimes are the same offense. . . . At this second step, we [t]raditionally . . . have applied the Blockburger test [see Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932)] to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy: [W]here the same act or transaction consti-tutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . In applying the Blockburger test, wе look only to the information and bill of particulars—as opposed to the evidence presented at trial . . . . Because double jeopardy attaches only if both steps are satisfied . . . a determination that the offenses did not stem from the same act or transaction renders analysis under the second step unnecessary.” (Footnote omitted; internal quotation marks omitted.) State v. Jarmon, 195 Conn. App. 262, 282–83, 224 A.3d 163, cert. denied, 334 Conn. 925, 223 A.3d 379 (2020); see also State v. Porter, supra, 328 Conn. 662.
For purposes of double jeopardy analysis, a greater included offense and a lesser included offense constitute the same offense. See, e.g., State v. Miranda, 260 Conn. 93, 125, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002); see also State v. Goldson, 178 Conn. 422, 425, 423 A.2d 114 (1979) (“[i]t is clear, as Brown v. Ohio, [432 U.S. 161, 168, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)] holds, that if the two counts stand in the relationship of greater and lesser included offenses, then [t]he greater offense is by definition the same for purposes of double jeopardy as any lesser offense included in it” (internal quotation marks omitted)). Simply stated, “[t]he double jeopardy prohibition . . . is violated if one crime is a lesser included offense of the other.” State v. Carlos P., 171 Conn. App. 530, 537–38, 157 A.3d 723, cert. denied, 325 Conn. 912, 158 A.3d 321 (2017).
Where the defendant claims that his or her conviction includes a lesser included offense, we employ a different analysis than the traditional Blockburger comparison of the elements of each offense. Id., 537–39; see, e.g., State v. Greco, 216 Conn. 282, 292, 579 A.2d 84 (1990); State v. Raymond, 30 Conn. App. 606, 610–11, 621 A.2d 755 (1993). “The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. If it is possible, then the lesser violation is not an included crime. . . . In conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial.” (Citation omitted; internal quotation marks omitted.) State v. Miranda, supra, 260 Conn. 125; see also State v. Greco, supra, 216 Conn. 291; State v. Goldson, supra, 178 Conn. 426; State v. Bumgarner-Ramos, 187 Conn. App. 725, 749, 203 A.3d 619, cert. denied, 331 Conn. 910, 203 A.3d 570 (2019); State v. Flynn, 14 Conn. App. 10, 17–18, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). Guided by these principles, we turn to the specifics of the pres-ent case.
The following additional facts will facilitate our analysis of the defendant‘s appeal. In count one of the long form information dated November 24, 1997, the state charged the defendant with “capital felony, in violation of . . .
On December 11, 1997, the court, Barry, J., instructed the jury following the presentation of evidence and closing arguments in the defendant‘s criminal trial. The court charged the jury regarding the crime of capital felony. It then instructed the jury on the crime of manslaughter in the first degree in violation of
Our Supreme Court recently addressed step one of the double jeopardy analysis in State v. Porter, supra, 328 Conn. 648. Specifically, it considered “whether a court may look to the evidence presented at trial when determining if a defendant‘s conviction violated the constitutional prohibition against double jeopardy.” Id., 650. In Porter, the defendant had argued that this court improperly considered the evidence presented at trial in determining whether a double jeopardy violation had occurred; the state countered that consideration of the evidence during step one was proper. Id., 650–51.
Briefly addressing step two of the double jeopardy аnalysis, our Supreme Court emphasized that “the Blockburger test . . . is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial.” (Internal quotation marks omitted.) Id., 656. Our Supreme Court, after reviewing the relevant case law, noted that this prohibition against the review of the evidence applied only to step two of the double jeopardy analysis. Id., 658. With respect to step one, it emphasized that that it routinely had “looked beyond the charging documents [and considered the evidence] to determine whether the offenses arose from a single act or transaction.” Id., 659. Further, it explicitly stated that, “[a]t step one, it is not uncommon that we look to the evidence at trial and to the state‘s theory of the case . . . .” (Internal quotation marks omitted.) Id., 662. Thus, in the present case, we must consider the charging documents, the evidence set forth during the trial, the state‘s theory of the case and the court‘s jury instructions, to determine whether the offenses of manslaughter in the first degree and risk of injury arose from the same act or transaction.
As we have noted previously, the state charged the defendant in a long form information, dated November 24, 1997, with capital felony and risk of injury. The state alleged that both of these crimes occurred “on or about the morning of December 8, 1996 . . . .” Additionally, the state asserted that these crimes occurred at the same location and were perpetrated on the same victim.
During the trial, the state presented the testimony of Arkady Katsnelson, an associate medical examiner who had performed the autopsy on the victim. During his external examination, Katsnelson noted multiples contusions, or bruises, on the victim‘s face and chest, and contusions and abrasions on the abdomen, arms, legs and
Katsnelson also discovered multiple areas of hemorrhage under the skin of the scalp and noted that these separate injuries were located on the right side and the back of the victim‘s head. He described these wounds as “fresh” and that they had occurred not long before death. As he continued the internal examination, Katsnelson discovered a substantial amount of the victim‘s blood in his abdominal cavity where there should be none, as well as a fractured rib and a “big laceration of the liver.” The blood in the victim‘s abdominal cavity remained in a liquid state. Katsnelson noted the absence of any clotting, which indicated that the victim had not survived long after receiving the liver injury. Katsnelson further determined that the laceration to the liver was the cause of death11 and that the victim‘s other injuries were not fatal. Katsnelson concluded that the victim could have survived only “a short period of time, which could be several minutes after he received the laceration of the liver.”
The prosecutor asked Katsnelson if there was any indication that any of the injuries sustained by the victim had occurred at a different time, and he replied: “No, all these injuries I found during my examination, I believe they [were] inflicted in the same short period of time. They are not—I did not find any evidence of healing of these injuries, and I believe they were all inflicted within one short period of time.” (Emphasis added.) He then defined “a short period time” as “within probably minutes.”
The prosecutor also called as a witness Betty Spivack, a physician trained in pediatric critical care. She indicated that bruising does not occur when an individual is in severe shock or cardiac arrest due to the fact that, in such circumstаnces, blood is not being pumped through the body and does not flow out of the blood vessels. Spivack agreed that the injury to the victim‘s liver was the sole cause of cardiac arrest12 in this case. She classified the victim‘s injuries into two groups: those that had occurred before, or no more than one to two minutes after, the liver laceration, and those that had happened after the liver laceration and resulting diminished blood flow to the skin, shock and cardiac arrest. Spivack testified that all of the
After the conclusion of the evidence, the prosecutor presented her closing argument to the jury. In reference to Katsnelson‘s testimony, the prosecutor referred to the victim‘s injuries to the head, face, chest, abdomen, back, groin, leg and arm. The prosecutor specifically argued: “All of those were inflicted [Katsnelson] said in the same short period of time, a matter of minutes. All the injuries were recent fresh injuries.” (Emphasis added.) After discussing Spivak‘s testimony, the prosecutor indicated to the jury that “[a]ll the bruises and particularly the larger ones on the face, the back, the upper abdomen preceded the liver laceration or were within two minutes of it according to the medical testimony.” In addressing the intent element for the charge of capital felony, the prosecutor stated: “We‘ve got—besides that blow [that caused the liver laceration] we‘ve got the multiplicity and the nature of the injuries. There were repeated blows. There‘s only one fatal one. This child was battered over and over and over again. We have the forceful upward kick or punch which lacerated the liver, caused internal bleeding and shock within three minutes and death not long after that, but there were many blows. The remainder of the injuries were inflicted in the same short period of time. That‘s what the medical evidence is, multiple blows to the top of the head, the back of the head, the side of the head, the face, the chest, the abdomen, multiple puncture wounds to the groin, bruises to the leg and arm. . . . Finally, I would submit you may find evidence of the defendant‘s intent to kill in the fact that he didn‘t stop hitting [the victim] until he killed him.” (Emphasis added.) The prosecutor ended her initial closing argument with the following statement: “There‘s only one logical conclusion, that it was the defendant who killed [the victim] by striking him many times and continuing to strike him until he killed him with some object or a punch or a kick with extensive force in the abdomen.” (Emphasis added.)
After considering the long form information, the evidence presented at the criminal trial and the state‘s theory of the case, as evidencеd by its closing argument, we conclude that the court erred in determining that the manslaughter in the first degree and the risk of injury offenses did not arise from the same act or transaction.
We note that our Supreme Court has held that where an information, as amplified by a bill of particulars,13 charged a defendant with two narcotics offenses that had occurred at the same time and same place and involved the same narcotic, then those offenses arose from the same act or transaction. See State v. Goldson, supra, 178 Conn. 424–25; see also State v. Nelson, 118 Conn. App. 831, 853, 986 A.2d 311 (two kidnapping charges arose from same act or transaction where operative information alleged that crimes were committed on same date, in same location and against same victim), cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010); State v. Crudup, 81 Conn. App. 248, 252–53, 838 A.2d 1053 (first prong of double jeopardy analysis met where information charged that both crimes occurred during afternoon hours of same date), cert. denied, 268 Conn. 913, 845 A.2d 415 (2004); State v. Davis, 13 Conn. App. 667, 671, 539 A.2d 150 (1988) (three offenses arose from same act or transaction where information
charging skull fracture and other rectal tears as serious physical injury, two offenses did not arise from same transaction where medical examination revealed that rectal tearing was “fresh” wound and skull fracture was seven to ten days old).
Additionally, the evidence produced at trial supports the conclusion that the injuries to the victim occurred during the same act or transaction. See State v. Nixon, 92 Conn. App. 586, 591, 886 A.2d 475 (2005). The medical evidence introduced by the state indicated that the victim‘s abrasions and contusions occurred in the period of time just prior to death and there was no indication of any healing. Specifically, Katsnelson identified the bruises under the scalp and the lack of clotted blood in the abdоminal cavity as indicators that the victim had not survived long after receiving these injuries. He also testified that death occurred not long after the liver laceration. Indeed, he specifically stated that “all [of] these injuries which I found during my examination, I believe they [were] inflicted in the same short period of time. They are not—I did not find any evidence of healing of these injuries, and I believe they were all inflicted within one short period of time . . . [and] I mean within probably minutes.” (Emphasis added.)
Finally, we consider the state‘s closing argument to the jury and its theory of the case. The prosecutor contended that Katsnelson had testified that the bruises and abrasions found on the victim‘s body were “fresh” injuries and had been inflicted “in the same short period of time, a matter of minutes.” She further argued that the defendant had inflicted multiple blows to the head, chest and abdomen of the victim. The prosecutor subsequently emphasized the multiple blows that had occurrеd in a short period of time. The state relied on this evidence as proof of the defendant‘s intent to kill the victim. The fact that the jury did not find such intent does not change the fact that the state relied on all of the blows to the victim as showing how the defendant acted in a single, continuous attack. Defense counsel, during his closing argument, commented on the state‘s insistence that all of the victim‘s injuries had occurred “within a short period of time, all happened at once . . . .” After considering the state‘s closing argument; see State v. Porter, supra, 328 Conn. 663; as well as the information and the evidence presented,14 we conclude that the homicide and risk of injury offenses in this case arose from the same transaction.15 Accordingly, we proceed to step two of the double jeopardy analysis.
In the present case, the defendant was convicted of manslaughter in the first degree and risk of injury to a child. Each of those criminal statutes contains an element the other does not: Manslaughter in the first degree provides that the offender cause the death of the victim and risk of injury to a child provides that the victim be under the age of sixteen years old. The defendant contends, however, that one cannot cause the death оf another in the manner described in the information, without first inflicting trauma to the victim‘s body, which is an act likely to impair the health of the minor victim. Accordingly, he maintains that, under the circumstances of this case, risk of injury to a child is a lesser included offense and, thus, the same offense for purposes of double jeopardy, as manslaughter in the first degree. We agree with the defendant.
As we have recited previously, the state charged the defendant with causing the death of the fifteen month old victim by blunt trauma to the abdomen. With respect to the risk of injury count, the state alleged that the defendant impaired the health of the fifteen month old victim by inflicting multiple blows to the victim‘s
In light of the cases cited herein, the defendant has demonstrated that the homicide and risk of injury offenses arose from the same act or transaction and that the risk of injury offense is a lesser included offense within the homicide offense, as charged in the information in this case.
Finally, we must consider whether the defendant‘s right to be free from double jeopardy was not violated because our legislature authorized multiple punishments. “Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the same conduct under Blockburger, a court‘s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” (Internal quotation marks omitted.) State v. Gonzalez, 302 Conn. 287, 317, 25 A.3d 648 (2011). However, “[w]here there is no clear indication of a contrary legislative intent . . . the Blockburger presumption controls.” (Internal quotation marks omitted.) State v. Bumgarner-Ramos, supra, 187 Conn. App. 751 n.19. In his memorandum of lаw in support of his motion to correct an illegal sentence, the defendant argued that there was no such intent evidenced by our legislature
We conclude that the defendant‘s right to be free of double jeopardy was violated in this case. Accordingly, the trial court improperly denied his motion to correct an illegal sentence.
The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.