ROBERT JAMES JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant can only be convicted of one count of resisting an officer with violence, even if multiple officers were involved in a single incident, due to double jeopardy protections.
Robert James Johnson was convicted of two counts of resisting two police officers with violence during a single arrest attempt. The State conceded tha…
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SALCINES, Judge.
Robert James Johnson appeals the multiple convictions imposed for resisting two police officers with violence during a single incident in which the officers were attempting to effectuate an arrest. The State concedes that pursuant to Wallace v. State, 724 So. 2d 1176 (Fla.1998), Johnson should only have been convicted of one count; however, the State argues that the issue was not preserved for appellate review.
Although counsel did not raise the issue at the trial court level, pursuant to Wallace Johnson could only be convicted of one count of resisting an officer with violence. Under the facts of this case, the two convictions violate the prohibition against double jeopardy and constitute fundamental error. See Jones v. State, 711 So. 2d 633, 634 (Fla. 1st DCA 1998). Fundamental error may be raised for the first time on appeal. See Bain v. State, 730 So. 2d 296, 300-301 (Fla. 2d DCA 1999).
Accordingly, we reverse and remand with directions that the conviction for one count of resisting an officer with violence be vacated. The remaining judgment and sentence is affirmed in all other respects.
Reversed and remanded with directions.
PATTERSON, C.J., and CASANUEVA, J., Concur.
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Cited By (11 total)
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Gisi v. State, 848 So. 2d 1278 (Fla. 2d DCA 2003)…counsel did not raise the double jeopardy issue below; however, the issue was not waived for appellate purposes because a double jeopardy violation constitutes fundamental error which can be raised for the first time on appeal. See Johnson v. State, 747 So. 2d 1027 (Fla. 2d DCA 1999). Thus, Gisi’s appellate counsel could have raised the issue that two out of the three convictions in each of the four sexual episodes were barred by double jeopardy considerations regardless of the fact that trial counsel did not…
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Elliott Vasquez v. State, 778 So. 2d 1068 (Fla. 5th DCA 2001)…e convictions for resisting an officer without violence arising out of the same criminal episode constitute a violation of double jeopardy, even if multiple officers are involved. Fogle v. State, 754 So. 2d 878 (Fla. 1st DCA 2000); Johnson v. State, 747 So. 2d 1027 (Fla. 2d DCA 1999); Jones v. State, 711 So. 2d 633 (Fla. 1st DCA), rev. dismissed, 717 So. 2d 538 (Fla.1998). A violation of double jeopardy constitutes fundamental error which may be raised for the first time on appeal. Johnson; Jones. Thus we may…
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Rudolf v. State, 851 So. 2d 839 (Fla. 2d DCA 2003)…s is not a proper claim for ineffective assistance because the double jeopardy violation is fundamental error. Although counsel may have been deficient in failing to assert it, the issue could have been raised on direct appeal, see Johnson v. State, 747 So. 2d 1027 (Fla. 2d DCA 1999), and a double jeopardy violation is likewise cognizable as a claim in a rule 3.850 motion. See Tidwell v. State, 790 So. 2d 1184 (Fla. 2d DCA 2001); Plowman v. State, 586 So. 2d 454 (Fla. 2d DCA 1991). Thus, we treat Ru-dolfs clai…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)
- Castro v. State, 389 So. 3d 633 (Fla. 3d DCA 2025)
- Jones v. State, 711 So. 2d 633 (Fla. 1st DCA 1998)