ANDREW H. LEPAK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant's conviction for battery under the domestic violence statute was reversed as an ex post facto application because the offense occurred three days before the statute became effective, but remanded for prosecution under the general battery statute.
A conviction under a statute that was not effective when the offense occurred constitutes an impermissible ex post facto application and must be reversed.
[1] A defendant cannot be convicted of a nonexistent crime even if no objection was raised in the trial court, and conviction under a statute not yet effective when the offen…
Previewing 1 of 1 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“A law is ex post facto when applied to an offense which occurred before the law became effective.”
Court's statement of the legal standard for ex post facto violations, citing Rodriguez v. State.
Andrew Lepak committed battery on September 27, 1995, three days before the domestic violence battery statute became effective on October 1, 1995. He …
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PATTERSON, Judge.
Andrew Lepak appeals from his judgment and sentence for battery under section 784.035, Florida Statutes (1995), the domestic violence statute. He correctly argues that his conviction under that statute constitutes an ex post facto application of the law because the offense occurred three days before the statute became effective on October 1, 1995.
“A law is ex post facto when applied to an offense which occurred before the law became effective.” Rodriguez v. State, 380 So. 2d 1123, 1124 (Fla. 2d DCA 1980). A defendant cannot be convicted of a nonexistent crime, even if no objection was raised in the trial court. See Achin v. State, 436 So. 2d 30 (Fla.1982); Stephens v. State, 444 So. 2d 498 (Fla. 2d DCA 1984). Therefore, we reverse Lepak’s conviction for battery under section 784.035. However, because the State sufficiently proved the elements of battery to sustain a conviction under section 784.035, the double jeopardy provisions of the Fifth Amendment do not bar Lepak’s prosecution for battery under section 784.03, Florida Statutes (1995). Cf. State v. Sykes, 434 So. 2d 325 (Fla.1983), and Stephens, 444 So. 2d at 499 (holding that a defendant convicted of a nonexistent lesser-included offense may be retried when all of the elements of the crime for which he was convicted are equal to the elements of the main offense).
Reversed and remanded.
DANAHY, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Sykes, 434 So. 2d 325 (Fla. 1983)
- Achin v. State, 436 So. 2d 30 (Fla. 1982)
- Vicente Rodriguez v. State, 380 So. 2d 1123 (Fla. 2d DCA 1980)
- Stephens v. State, 444 So. 2d 498 (Fla. 2d DCA 1984)