THE STATE OF FLORIDA, APPELLANT,
v.
ROBERT L. JOHNSON, APPELLEE

Fla. 3d DCA | 1994-10-26
No. 93-2734
Before BASKIN, JORGENSON, and GERSTEN, JJ.
644 So. 2d 1028 Florida District Court of Appeal, Third District (1994)

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Synopsis

Florida appealed the dismissal of an aggravated stalking charge against Johnson on double jeopardy grounds. The court affirmed the dismissal, holding that the aggravated stalking charge was a lesser-included offense of the criminal contempt charge for violating an injunction, barring successive prosecution under the double jeopardy clause.


Holding

The double jeopardy clause bars the aggravated stalking prosecution because aggravated stalking is a lesser-included offense of the contempt charge. The substantive crime of aggravated stalking cannot be committed without also violating the terms of the injunction, of which Johnson was already convicted.


Headnotes

[1] The Double Jeopardy Clause bars a subsequent prosecution when each offense contains an element not contained in the other.

[2] A subsequent prosecution is barred by double jeopardy if the subsequent offense is a species of lesser-included offense of a prior conviction.

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Key Quotes

“inquires whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution”

Establishes the 'same-elements test' for determining whether double jeopardy bars successive prosecution

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Facts & Procedural History

In March 1993, a permanent injunction against domestic violence was served on Johnson, prohibiting him from entering Andrea Green's residence or engag…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The State appeals from an order dismissing, on double jeopardy grounds, a charge of aggravated stalking. We affirm.

In March, 1993, a permanent injunction against domestic violence was served upon Johnson. The injunction prohibited him from engaging in any criminal offense resulting in physical injury to Andrea Green, entering onto her place of residence or place of employment, or abusing, threatening, or harassing her. Johnson violated the terms of the injunction by entering Green’s place of residence, and pled no contest to the charge of criminal contempt that arose from that violation. At the same time, and based upon the same conduct — Johnson’s entry onto Green’s residence — the State filed an information charging Johnson with aggravated stalking by violating a prior injunction. Johnson moved to dismiss the information on the ground of double jeopardy; the trial court granted the motion.

The trial court properly dismissed the charge of aggravated stalking. To determine whether the double jeopardy provision bars a subsequent prosecution, the Supreme Court has applied the “same-elements test”1 which “inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” United States v. Dixon, 509 U.S.-,-, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556, 568-69 (1993) (citations omitted).

In Dixon, the Court applied the same-elements test to bar a prosecution for possession of cocaine with intent to distribute after Dixon had already been found guilty of contempt of court for violating a condition of his release by engaging in a criminal act, namely the precise substantive offense with which he had been charged: possession of cocaine with intent to distribute. The crime of violating a condition of his release could not be “abstracted from the ‘element’ of the violated condition.” Dixon, 509 U.S. at -, 113 S.Ct. at 2857, 125 L.Ed.2d at 569-70.

In this case, as in Dixon, the substantive charge was subsumed under the language of the injunction. There is no conceivable way in which Dixon could have committed aggravated stalking against the victim without also violating the terms of the injunction, a crime for which he had already been convicted. In the language of Dixon, aggravated stalking is “a species of lesser-included offense” of the contempt charge, id. (citations omitted); the rule against double jeopardy thus barred the subsequent prosecution for aggravated stalking. See also Illinois v. Vitale, 447 U.S. 410, 421, 100 S.Ct. 2260, 2267, 65 L.Ed.2d 228, 238 (1980) (person convicted of crime having several elements included in it may not subsequently be tried for lesser-included offense consisting solely of one or more elements of crime for which he already was convicted).

AFFIRMED.

. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932).


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