BARBARA T. FREEDMAN, A/K/A BARBARA T. TANNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Barbara Freedman appeals her conviction and sentence for attempted first degree murder and aggravated battery of the same victim. The court reversed her aggravated battery conviction and sentence, holding that under State v. Boivin, multiple punishments cannot be imposed for both attempted first degree murder and aggravated battery when both offenses arose from a single injury to one person.
The court held that although aggravated battery is not a necessarily lesser included offense of attempted first degree murder, multiple punishments cannot be imposed for both offenses where they caused no additional injury to another person or property. The aggravated battery conviction and sentence must be vacated.
[1] A conviction and sentence for aggravated battery may not be imposed where the aggravated battery and attempted first degree murder caused no additional injury to another…
[2] Aggravated battery is not a necessarily lesser included offense of attempted first degree murder.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the court found no legislative intent or recognition that society needs multiple punishments for both aggravated battery and attempted first degree murder where both the attempted murder and the aggravated battery caused no additional injury to another person or property”
Establishes the core principle that multiple punishments are improper when both offenses stem from a single injury to one victim
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Join FLexlaw to unlock all legal intelligenceAppellant pled nolo contendere to attempted first degree murder and aggravated battery of Michael Jones, and battery of Michael Emerson. She received …
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SMITH, Judge.
Appellant pled nolo contendere to attempted first degree murder and aggravated battery of Michael Jones, and battery of Michael Emerson. She was sentenced to two terms of fifteen years on the aggravated battery and attempted first degree murder charges, to run concurrent with each other, and one year on the battery charge to run concurrent with the sentences for the other changes. She filed a motion for postconviction relief raising, among other things, the trial court’s error in imposing a judgment and sentence for both aggravated battery and attempted first degree murder. The trial court summarily denied her motion for postconviction relief and she appealed. We reverse.
In State v. Boivin, 487 So. 2d 1037 (Fla.1986), the Florida Supreme Court ruled that aggravated battery is not a necessarily lesser included offense of attempted first degree murder. However, the court found no legislative intent or recognition that society needs multiple punishments for both aggravated battery and attempted first degree murder where both the attempted murder and the aggravated battery caused no additional injury to another person or property.1 Accordingly, the court approved the district court’s reversal of Boivin’s conviction and sentence for aggravated battery.
The record before this court demonstrates that the attempted first degree murder and aggravated battery of Michael Jones did not cause any additional injury to another person or property. Therefore, pursuant to this court’s recent decision in Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986), this court requested the assistant attorney general to show cause why it should not grant appellant postconviction relief by requiring that her conviction and sentence for aggravated battery be vacated pursuant to State v. Boivin.
The state’s response fails to distinguish the Florida Supreme Court’s decision in State v. Boivin. Accordingly, we reverse and remand this cause to the trial court for proceedings consistent with this opinion and the Florida Supreme Court’s opinion in State v. Boivin. The remaining points raised in appellant’s motion for postconviction relief are without merit.
REVERSED and REMANDED.
SHIVERS and ZEHMER, JJ., concur. . See also, Crumley v. State, 489 So. 2d 112 (Fla. 1st DCA 1986), pet. for rev. granted (Fla. Sept. 15, 1986) (No. 68,810) holding, on similar analysis, that aggravated battery and battery of law enforcement officer, although punishable under different statutory provisions, and separate and distinct crimes under the Blockburger test, could not be punishable as separate offenses where the sole victim is a law enforcement officer and there is only one battery.
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Citator
Cited By
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Freeman v. State, 513 So. 2d 719 (Fla. 1st DCA 1987)…ef under the Florida Supreme Court’s decision in State v. Boivin, 487 So. 2d 1037 (Fla.1986). When the state’s response failed to distinguish the Supreme Court’s decision in State v. Boivin, this court filed its opinion [*721] in Freedman v. State, 498 So. 2d 524 (Fla. 1st DCA 1986),2 concluding with the following directions to the trial court: The state’s response fails to distinguish the Florida Supreme Court’s decision in State v. Boivin. Accordingly, we reverse and remand this cause to the trial court f…
Authorities Cited
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- State v. Jules Boivin, 487 So. 2d 1037 (Fla. 1986)
- Rossi Borgia v. State, 489 So. 2d 112 (Fla. 2d DCA 1986)
- Crumley v. State, 489 So. 2d 112 (Fla. 1st DCA 1986)