JEROME MARK DRAYTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerome Drayton appeals his convictions for resisting arrest with and without violence and trespass. The appellate court affirmed his convictions, rejecting his double jeopardy argument and addressing his sentencing claim by requiring compliance with procedural rules.
The court held that Drayton's convictions for resisting arrest with and without violence do not violate double jeopardy because they arose from two separate acts with different intents. The court affirmed the sentences without prejudice because Drayton failed to object at trial or file a timely motion to correct sentence under rule 3.800(a), which is required by Florida law.
[1] Convictions for resisting arrest with violence and resisting arrest without violence may stand when they address two separate acts of resistance with distinct intents.
[2] When a short temporal separation exists between criminal acts, intent is the determining factor in whether the actions constitute separate offenses.
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Join FLexlaw to unlock all legal intelligence“A conviction for resisting arrest with violence and resisting arrest without violence may occur when the convictions address two separate acts of resisting.”
Establishes the legal standard for when multiple resisting arrest convictions do not constitute double jeopardy
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Join FLexlaw to unlock all legal intelligenceBrett Tannenbaum, a rental property owner, observed Drayton trespassing twice. After warning him in the presence of police, Tannenbaum ejected Drayton…
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PER CURIAM.
Appellant, Jerome Drayton, appeals his conviction for resisting arrest without violence, resisting arrest with violence, and trespass. He alleged essentially two errors on appeal. First, his conviction for resisting arrest with violence and resisting arrest without violence is double jeopardy. Second, that the three consecutive five-year sentences are illegal because they exceed the statutory maximum.
After careful review of the facts adduced at trial, we find that Drayton’s actions were two separate acts with different intents. At trial the State proved the following:
Brett Tannenbaum, a rental property owner, had twice observed Drayton trespassing upon his property. In the presence of police, Tannenbaum warned Dray-ton against trespassing again, and ejected him from his property. Several days later, Tannenbaum again observed Drayton on the property and summoned police. Two officers responded and as they approached, Drayton shoved one of them and a struggle ensued. Drayton was subsequently subdued and handcuffed. Moments after Drayton was under control, he incorrectly told the officer he was seventeen and therefore a juvenile.
A conviction for resisting arrest with violence and resisting arrest without violence may occur when the convictions address two separate acts of resisting. See Madison v. State, 777 So. 2d 1175, 1176 (Fla. 5th DCA 2001). Where there is a short temporal separation between criminal acts, the court will look to intent in deciding whether the actions of the defendant constitute separate acts. See Consigno v. State, 743 So. 2d 1221 (Fla. 4th DCA 1999); see also Brown v. State, 430 So. 2d 446 (Fla.1983). In the case at bar, the intent of Drayton’s physical resistance was to avoid arrest entirely. The intent of the lie about his age was to avoid being jailed as an adult. These acts have, as their motivation, two different intents. Therefore, in accord with this Court’s decision in Consiglio v. State, 743 So. 2d 1221 (Fla. 4th DCA 1999), we affirm on that issue.
Although the term to which Dray-ton was sentenced clearly exceeds the statutory maximum, because Drayton did not object to the sentence at the trial court level, nor did he file a rule 3.800 motion to correct sentence, the Florida Supreme Court’s decision in Maddox v. State, 760 So. 2d 89 (Fla.2000) requires us to affirm. However, this decision is rendered without prejudice to Drayton to file a subsequent, timely motion to correct sentence under rule 3.800(a).
AFFIRMED without prejudice to file a rule 3.800(a) motion to correct sentence.
GUNTHER, KLEIN and HAZOURI, JJ., concur.
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Agosto-Molina v. State, 933 So. 2d 26 (Fla. 2d DCA 2006)…However, to preserve this issue for review on direct appeal, a defendant must either object or file a motion to correct sentencing error pursuant to rule 3.800(b). See Washington v. State, 814 So. 2d 1187, 1189 (Fla. 5th DCA 2002); Drayton v. State, 791 So. 2d 522, 524 (Fla. 4th DCA 2001). In the present case, there was no objection and no rule 3.800(b) motion was filed. In Hakkenberg v. State, 889 So. 2d 935, 937 (Fla. 2d DCA 2004), this court held: “Appellate counsel’s failure to preserve the sentencing er…
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Lloyd v. State, 876 So. 2d 1227 (Fla. 4th DCA 2004)…that were before the trial court). We have held that even fundamental sentencing errors must be preserved by raising them in the trial court first, either by objection or by filing a motion to correct sentence under rule 3.800(b). Drayton v. State, 791 So. 2d 522, 524 (Fla. 4th DCA 2001) (consecutive five-year sentences clearly exceeding statutory maximum could not be raised on direct appeal when defendant did not object to sentence at trial court level or file motion to correct sentence); see also Fla. R.Cr…
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Marsdin v. State, 813 So. 2d 260 (Fla. 4th DCA 2002)…ust innocent activity and was enough to support a finding of probable cause. Marsdin’s sentence is also affirmed, without prejudice to his raising the sentencing issue in the trial court by petition for post-conviction relief. See Drayton v. State, 791 So. 2d 522, 523 (Fla. 4th DCA 2001); Garrett v. State, 788 So. 2d 328 (Fla. 4th DCA 2001). POLEN, C.J. and STEVENSON, J, concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Brown v. State, 430 So. 2d 446 (Fla. 1983)
- Rodriguez v. State, 777 So. 2d 1175 (Fla. 4th DCA 2001)
- Consiglio v. State, 743 So. 2d 1221 (Fla. 4th DCA 1999)
- Madison v. State, 777 So. 2d 1175 (Fla. 5th DCA 2001)