ELLIOT RENO WHATLEY, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Elliot Reno Whatley petitioned for a writ of habeas corpus claiming ineffective assistance of appellate counsel for failing to raise a double jeopardy violation. Whatley was convicted of both aggravated battery and burglary with a battery, where the same conduct (the battery) was used to enhance the burglary charge. The court granted the petition, finding that appellate counsel should have raised the issue based on binding precedent available at the time of appeal.
Appellate counsel was ineffective for failing to raise the double jeopardy issue because binding case law existed at the time of appeal establishing that battery is a lesser included offense of burglary with a battery, and that dual convictions based on the same conduct violate double jeopardy protections.
[1] Ineffective assistance of appellate counsel can be established by the failure to raise a meritorious double jeopardy claim.
[2] A double jeopardy violation occurs when a conviction for aggravated battery is used to enhance a burglary conviction, and the aggravated battery conviction is based on th…
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Join FLexlaw to unlock all legal intelligence“Whatley's argument appears to have merit. We grant the petition.”
The court's initial determination that the ineffective assistance claim had legal merit and the decision to grant relief.
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Join FLexlaw to unlock all legal intelligenceOn January 17, 1991, Whatley was charged with and convicted of attempted first degree murder, aggravated battery, and burglary with a battery or while…
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PER CURIAM.
Elliot Reno Whatley’s petition for writ of habeas corpus claims ineffective assistance of appellate counsel. It is asserted that counsel should have argued that the prohibition against double jeopardy had been violated when Whatley was convicted of first degree burglary and also convicted of the aggravated battery used to enhance the burglary. Whatley’s argument appears to have merit. We grant the petition.
On January 17,1991, Whatley was charged with, and subsequently convicted of, attempted first degree murder, aggravated battery, and burglary with a battery or while armed.1 Appellate counsel successfully contested the habitual offender sentences imposed; however, by opinion dated March 12, 1998, this court affirmed the convictions. Whatley v. State, 614 So. 2d 689 (Fla. 2d DCA), rev. dism’d, 618 So. 2d 1370 (Fla.1993).2 The double jeopardy argument has never been raised.
This court has recently held that battery is a lesser included offense of burglary with a battery.3 Unfortunately, at the time of Whatley’s appeal the issue was not completely settled. However, counsel’s failure to raise the issue on appeal is not excused because there was binding case law in effect at the time the appeal was pending upon which to base the double jeopardy argument. See Ellison v. State, 545 So. 2d 480 (Fla. 5th DCA 1989); Bradley v. State, 540 So. 2d 185 (Fla. 5th DCA 1989). See also Cleveland v. State, 587 So. 2d 1145 (Fla.1991) (when robbery is enhanced due to use of a firearm, the use of the same firearm cannot form the basis of a separate conviction for use of a firearm while committing a felony); Graham v. State, 559 So. 2d 410 (Fla. 2d DCA 1990) (dual convictions for attempted armed robbery and use of a firearm during the commission of a felony constitute a violation of double jeopardy); Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988) (display of firearm conviction was cumulative punishment when the same act of using a weapon was basis of enhancement of attempted first-degree murder and robbery convictions). Cf. Dixon v. Singletary, 672 So. 2d 602, 603 (Fla. 3d DCA 1996) (appellate counsel was ineffective because he should have been aware of a conflict between the districts on the double jeopardy issue for almost a full year before appellant’s case was decided in the court of appeal).
Accordingly, the petition is granted. It is ordered that the trial court shall within ten days appoint appellate counsel to file a brief raising the double jeopardy issue in accordance with this opinion.
Petition granted.
PARKER, A.C.J., and PATTERSON and LAZZARA, JJ., concur. . This court cannot determine from the record before us, nor from the state's response to the petition, whether the enhancement of the burglary conviction from a second degree felony to a first degree felony was founded upon the charged battery or upon the fact that Whatley was armed. Accordingly, this court shall base its analysis on the presumption that the aggravated battery conviction was the basis of the enhancement.
. In a second appeal, Whatley’s sentences were affirmed; however, the matter was remanded for the judgment to designate the burglary offense to be a first degree felony punishable by life rather than a life felony. Whatley v. State, 640 So. 2d 1201 (Fla. 2d DCA 1994).
. See Bronson v. State, 654 So. 2d 584 (Fla. 2d DCA 1995); Watson v. State, 646 So. 2d 288 (Fla. 2d DCA 1994). See also Febles v. State, 654 So. 2d 615 (Fla. 3d DCA 1995) (conviction for burglary with an assault and conviction for assault violates double jeopardy).
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Gisi v. State, 848 So. 2d 1278 (Fla. 2d DCA 2003)…temporal aspects of the multiple occurrences must be analyzed in order to determine whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences. Id. at 1095. Thus, as did the court in Whatley v. State, 679 So. 2d 1269, 1270 (Fla. 2d DCA 1996), we conclude in the present case that appellate “counsel’s failure to raise the [double jeopardy] issue on appeal is not excused because there was binding case law in effect at the time the appeal was pending upon which to b…
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Evangelista Lopez v. State, 68 So. 3d 332 (Fla. 5th DCA 2011)…v. State, 905 So. 2d 1016 (Fla. 2d DCA 2005) (determining that appellant’s counsel’s failure to request supplemental briefing on favorable appellate decision from other district court constituted ineffective assistance of counsel); Whatley v. State, 679 So. 2d 1269 (Fla. 2d DCA 1996) (determining that although issue was not completely settled, counsel was ineffective for failing to cite favorable binding case law from another district in effect at time of pending appeal); McCann v. Moore, 763 So. 2d 556 (Fla.…
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Granberry v. State, 919 So. 2d 699 (Fla. 5th DCA 2006)…appeal granted); Ford v. Singletary, 689 So. 2d 392 (Fla. 3d DCA 1997) (holding that coun [*702] sel was ineffective for failing to bring new supreme court decision to court’s attention when it expressly applied to pipeline cases); Whatley v. State, 679 So. 2d 1269 (Fla. 2d DCA 1996) (determining that although issue was not completely settled, counsel was ineffective for failing to cite favorable binding case law from another district in effect at time of pending appeal). We conclude that the appellate counse…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Quinten L. Cleveland v. State, 587 So. 2d 1145 (Fla. 1991)
- Bradley v. State, 540 So. 2d 185 (Fla. 5th DCA 1989)
- Perez v. State, 528 So. 2d 129 (Fla. 3d DCA 1988)
- Graham v. State, 559 So. 2d 410 (Fla. 2d DCA 1990)
- Febles v. State, 654 So. 2d 615 (Fla. 3d DCA 1995)
- Watson v. State, 646 So. 2d 288 (Fla. 2d DCA 1994)
- Bronson v. State, 654 So. 2d 584 (Fla. 2d DCA 1995)
- Ellison v. State, 545 So. 2d 480 (Fla. 5th DCA 1989)
- Dixon v. Singletary, 672 So. 2d 602 (Fla. 3d DCA 1996)
- State v. D.J.P. Assocs., Inc., 640 So. 2d 1201 (Fla. 2d DCA 1994)