ERICKSON OLIVARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Erickson Olivard was convicted of aggravated battery for biting off a victim's ear and simple battery for hitting the victim with a bicycle pump. The appellate court affirmed the aggravated battery conviction but reversed the battery conviction and sentence, finding that double jeopardy protections prohibited dual convictions for offenses arising from a single continuous episode.
The court affirmed the aggravated battery conviction but reversed the simple battery conviction and sentence, holding that double jeopardy protections barred dual convictions for offenses arising from the same criminal episode. When dual convictions violate double jeopardy, the proper remedy is to vacate the conviction for the lesser offense while affirming the conviction for the greater one.
[1] Separate convictions for different offenses arising from a single act are only permissible where each separate offense contains an element that the other lacks.
[2] The proper analysis to determine whether offenses arise from the same criminal episode requires consideration of whether separate victims are involved, whether the crimes…
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Join FLexlaw to unlock all legal intelligence“Under the Blockburger test, separate convictions for different offenses arising from a single act are only permissible where each separate offense contains an element that the other lacks.”
Establishes the legal standard for permissible dual convictions under double jeopardy principles
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Join FLexlaw to unlock all legal intelligenceAppellant Olivard attacked Lyonel Thanis after a brief discussion about failing to give Thanis's roommate a ride home. Olivard approached Thanis from …
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PER CURIAM.
Appellant, Erickson Olivard, was charged with aggravated battery with a deadly weapon (Count I), and aggravated battery causing great bodily harm and permanent disfigurement (Count II). After a jury trial, appellant was found guilty as charged on Count II. However, he was convicted of the lesser included offense of battery on Count I. We affirm appellant’s conviction for aggravated battery. However, we reverse his conviction and sentence for battery as we find that the double jeopardy clause prohibits conviction and sentence for both offenses. We find appellant’s other arguments to be without merit.
After a brief discussion with the victim, Lyonel Thanis, wherein Thanis criticized appellant for failing to give his roommate a ride home from work, appellant approached Thanis from behind with a bicycle pump and began to hit him on his right shoulder. Thanis stood up and appellant jumped at him, causing the two to fall on a nearby bed. The two struggled and appellant bit Thanis’ ear off.
Appellant was charged with two counts of aggravated battery: one for hitting Thanis with the bicycle pump and the other for biting off Thanis’ ear. He was convicted of aggravated battery (causing great bodily harm and permanent disfigurement) for severing Thanis’ ear but found guilty of simple battery for hitting Thanis with the bicycle pump.
Under the Blockburger1 test, separate convictions for different offenses arising from a single act are only permissible where each separate offense contains an element that the other lacks. See § 775.021(4)(a), Fla. Stat. (2000). “The proper analysis to determine whether offenses arise from the same criminal episode requires consideration of the following factors: 1) whether separate victims are involved; 2) whether the crimes occurred in separate locations; and 3) whether there has been a temporal break between the incidents.” Russo v. State, 804 So. 2d 419, 420-21 (Fla. 4th DCA 2001)(quoting Vasquez v. State, 778 So. 2d 1068, 1070 (Fla. 5th DCA 2001)).
Here, appellant committed a battery and an aggravated battery against the same victim, in the same location, within seconds of each offense. Appellant’s actions were within the course of one continuous episode attacking Thanis. As such, only one conviction may stand. See Russo, 804 So. 2d at 422 (holding that double jeopardy barred dual convictions for aggravated assault where the defendant threatened his neighbor with a broken beer bottle and then swung a shovel at him; the incident involved only one victim, all of the conduct occurred at the same location, and there was no temporal break between each act); Maxwell v. State, 803 So. 2d 815 (Fla. 5th DCA 2001)(finding that convictions for aggravated battery causing great bodily harm and aggravated battery with a deadly weapon violated double jeopardy because the beating and stabbing of the victim occurred at the same time).
When dual convictions violate double jeopardy, “[t]he proper remedy is to vacate the conviction for the lesser offense while affirming the conviction for the greater one.” Hardy v. State, 705 So. 2d 979, 981 (Fla. 4th DCA 1998). Accordingly, we affirm appellant’s aggravated battery conviction, and remand this case to the trial court with directions to vacate the battery conviction and resentence appellant. See Johnson v. State, 744 So. 2d 1221 (Fla. 4th DCA 1999).
AFFIRMED in part; REVERSED in part and REMANDED for resentencing.
POLEN, C.J., FARMER and TAYLOR, JJ., concur. . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
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Bertram L. Capron v. State, 948 So. 2d 954 (Fla. 5th DCA 2007)…of lewd and lascivious exhibition, and remand this case to the trial court with directions to vacate one of the lewd and lascivious battery convictions and the lewd and lascivious conduct conviction and re-sentence Mr. Capron. See Olivard v. State, 831 So. 2d 823, 824 (Fla. 4th DCA 2002); Johnson v. State, 744 So. 2d 1221 (Fla. 4th DCA 1999). AFFIRMED IN PART; REVERSED IN PART; REMANDED. GRIFFIN and THOMPSON, JJ., concur. . Mr. Capron's failure to raise his double jeopardy challenge to his convictions and…
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Harris v. State, 111 So. 3d 922 (Fla. 1st DCA 2013)…ground with Appellant sitting on his girlfriend choking her. These facts reflect one continuous battery — an uninterrupted series of acts, as opposed to distinct acts separated by time, intervening acts, or different locations. See Olivard v. State, 831 So. 2d 823, 823-24 (Fla. 4th DCA 2002) (finding that defendant’s acts occurred in one continuous event where defendant struck victim with a bicycle pump, wrestled him to the ground, and bit his ear off); Gresham v. State, 725 So. 2d 419, 420 (Fla. 4th DCA 1999…
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Rosado v. State, 129 So. 3d 1104 (Fla. 5th DCA 2013)…with intent to commit a felony. Rosado further submits that his convictions for aggravated battery causing great bodily harm and two counts of misdemeanor battery also violate the prohibition against double jeopardy. We agree. See Olivard v. State, 831 So. 2d 823, 824 (Fla. 4th DCA 2002) (holding that dual convictions for battery and aggravated battery causing great bodily harm violated double jeopardy principles where defendant committed battery and aggravated battery against same victim, in same location,…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Hardy v. State, 705 So. 2d 979 (Fla. 4th DCA 1998)
- Elliott Vasquez v. State, 778 So. 2d 1068 (Fla. 5th DCA 2001)
- Russo v. State, 804 So. 2d 419 (Fla. 4th DCA 2001)
- Johnson v. State, 744 So. 2d 1221 (Fla. 4th DCA 1999)
- Lavonte Diedrell Maxwell v. State, 803 So. 2d 815 (Fla. 5th DCA 2001)