RICARDO TORNA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Ricardo Torna was convicted of both burglary with assault and/or battery and simple battery arising from the same criminal episode. The court held that these convictions violated double jeopardy because the verdict form failed to specify whether the burglary involved an assault or battery, making it impossible to determine if the convictions were for the same conduct.
The court held that the convictions violated double jeopardy because the ambiguous verdict form created uncertainty about whether the burglary was committed with an assault or battery, making it impossible to determine if both convictions were for the same conduct. The court vacated the simple battery conviction and affirmed the burglary conviction for resentencing.
[1] A conviction for burglary with an assault and/or battery and a separate conviction for battery arising from the same criminal episode violates the constitutional prohibit…
[2] When a jury verdict form does not specify whether a conviction for burglary with an assault and/or battery was based on an assault or a battery, and the defendant is also…
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Join FLexlaw to unlock all legal intelligence“Torna cannot properly stand convicted of both of these offenses.”
Statement of the court's conclusion that the dual convictions violate double jeopardy
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Join FLexlaw to unlock all legal intelligenceTorna broke into a neighbor's home, punched her, chased her, and threw her to the ground. He was charged with burglary with assault and/or battery und…
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NESBITT, J.
Ricardo Torna challenges, on double jeopardy grounds, his conviction of both “burglary with an assault and/or battery in an occupied dwelling” and (simple) “battery” arising from the same criminal episode. We agree with Torna that allowing both of these convictions to stand would violate the constitutional prohibition against double jeopardy. Therefore, we vacate Torna’s conviction of “battery” and remand to the trial court for resentencing on the “burglary with an assault and/or battery” conviction.
Following an incident in which Torna broke into the home of a neighbor, punched her, chased her, and threw her to the ground, Torna was charged with “burglary with an assault and/or battery” per section 810.02(2)(a), Florida Statutes, and with aggravated battery (on a pregnant woman).1 He was convicted of “burglary with an assault and/or battery” and (simple) “battery” (as a lesser included offense of the aggravated battery charge).
The verdict form indicated that Torna was “guilty as to the offense of burglary ... with an assault and/or battery” and “guilty of battery as a lesser included offense of [aggravated battery on a pregnant woman.]” This verdict form is the crux of the problem here as it contained no indication as to whether the jury had found that Torna had committed a “burglary with an assault” or a “burglary with a battery.” Given Torna’s additional conviction of “battery”, the determination of “with an assault” or “with a battery” was necessary so as not to run afoul of the double jeopardy issue. Since the determination was not made, and we cannot now guess what the jury was thinking, we must conclude that Torna was indeed subjected to double jeopardy by his conviction of both “burglary with an assault and/or battery” and “battery.” See e.g., Fields v. State, 24 Fla. L. Weekly D1231, 735 So. 2d 541 (Fla. 2d DCA 1999); Bronson v. State, 654 So. 2d 584 (Fla. 2d DCA 1995). In fact, if anything, the facts of this case lend themselves more to supporting a “burglary with a battery” conviction than a “burglary with an assault” conviction. Torna consummated his assault upon his neighbor by punching her and, later, throwing her to the ground; a battery was committed.
We urge that, in future cases involving charges of a violation of section 810.02(2)(a), the jury be tendered a verdict form that clearly indicates perhaps by boxes to be checked off whether the conviction is of burglary with an assault or burglary with a battery, so as to avoid the double jeopardy issues addressed in the instant case.
Torna cannot properly stand convicted of both of these offenses. Therefore, we vacate Torna’s conviction of (simple) battery. We affirm Torna’s conviction of “burglary with an assault and/or battery” and remand for resentencing on this conviction. Torna’s additional points on appeal are without merit.
. Torna was acquitted of other charges related to this criminal episode-a false imprisonment charge and two misdemeanor battery charges.
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Citator
Cited By (17 total)
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State v. Reardon, 763 So. 2d 418 (Fla. 5th DCA 2000)…first degree burglary. We must read the verdict in a manner which would give the benefit of the doubt to Mr. Reardon. See Valentine v. State, 688 So. 2d 313 (Fla.1996), cert. denied, 522 U.S. 830, 118 S.Ct. 95, 139 L.Ed.2d 51 (1997); Torna v. State, 742 So. 2d 366 (Fla. 3d DCA 1999). Of course, a finding that Mr. Reardon committed the burglary while armed would neither trigger Crawford concerns nor raise the specter of double jeopardy because both aggravated battery and armed burglary obviously contain elemen…1 / 3
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McCLOUD v. State, 803 So. 2d 821 (Fla. 5th DCA 2001)…is sufficient to prove penetration, this is insufficient. Therefore, even had the jury by interrogatory verdict found penetration to have occurred, such verdict could not be sustained under the evidence presented in this case. . See Torna v. State, 742 So. 2d 366 (Fla. 3d DCA 1999). This result is consistent with the policy dictated by section 775.021(1) and is suggested by the holding in Valentine v. State, 688 So. 2d 313 (Fla.1996). . Again, the dissent in Apprendi recognizes this potential: Third, the N…
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Irizarry v. State, 905 So. 2d 160 (Fla. 3d DCA 2005)…Accord Blevins v. State, 756 So. 2d 1052 (Fla. 4th DCA 2000); Washington v. State, 752 So. 2d 16 (Fla. 2d DCA 2000); Billiot v. State, 711 So. 2d 1277 (Fla. 1st DCA 1998). Finally, the defendant’s reliance on this Court’s opinions in Torna v. State, 742 So. 2d 366 (Fla. 3d DCA 1999), Lewis v. State, 740 So. 2d 82 (Fla. 3d DCA 1999), and Febles v. State, 654 So. 2d 615 (Fla. 3d DCA 1995), is misplaced where they deal with convictions for burglary with a battery and simple battery or assault, not aggravated bat…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bronson v. State, 654 So. 2d 584 (Fla. 2d DCA 1995)
- Fields v. State, 735 So. 2d 541 (Fla. 2d DCA 1999)