BRANDON A. BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brandon Brown appeals the post-conviction court's second summary denial of his motion for relief under Florida Rule of Criminal Procedure 3.850, challenging two robbery convictions on double jeopardy grounds. The court reverses, finding that the record establishes Brown was convicted of two counts of robbery arising from a single taking from one victim during one criminal episode, violating the Double Jeopardy Clause.
A double jeopardy claim may be raised in a 3.850 motion even after a guilty plea when the plea is open, the double jeopardy is apparent from the record, and there is no indication of waiver. A single taking from one register supports only one charge, and the presence of two employees does not transform one robbery into two. The post-conviction court's finding of two separate robberies was error, and the double jeopardy violation is apparent from the record.
[1] A double jeopardy claim may be raised in a motion for post-conviction relief even after a guilty plea.
[2] A guilty plea generally precludes a double jeopardy attack, but an exception exists when the plea is open, the violation is apparent from the record, and there is no indi…
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Join FLexlaw to unlock all legal intelligence“A single taking from one register supports only one charge, and the presence of two employees does not transform one robbery into two.”
Establishes the controlling legal principle that multiple victims from a single taking do not constitute multiple robberies.
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Join FLexlaw to unlock all legal intelligenceBrown entered an open guilty plea to four counts of robbery with a firearm, one count of carjacking, and one count of possession of cocaine. The factu…
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Brandon A. Brown appeals from the second summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reversed the postconviction court’s first summary denial of the motion because the order did not include any attachments to refute Brown’s double jeopardy claims. See Brown v. State, 958 So.2d 1125, 1126 (Fla. 2d DCA 2007). On remand, the post-conviction court again found no double jeopardy violation and summarily denied the motion, attaching to the order the information and a transcript of the plea colloquy. After reviewing Brown’s motion, the second summary denial with attachments, the record, and the State’s argument on appeal, we conclude the attachments do not refute and in fact establish Brown’s double jeopardy claim. Accordingly, we reverse the order denying Brown’s motion for postconviction relief.
Brown entered an open guilty plea to four counts of robbery with a firearm, one count of carjacking, and one count of possession of cocaine. In his motion for post-conviction relief, Brown raised two claims for relief based on double jeopardy. First, Brown contended that two of the robbery convictions, counts four and five, involved only one taking from one victim during one criminal episode. Second, Brown asserted that his trial counsel was ineffective for failing to research the double jeopardy claim and object to the violation.
A defendant may properly raise a double jeopardy claim in a 3.850 motion even after pleading guilty. See Coughlin v. State, 932 So.2d 1224,1226 (Fla. 2d DCA 2006); Plowman v. State, 586 So.2d 454, 455 (Fla. 2d DCA 1991). While a guilty plea and adjudication of guilt generally precludes a later double jeopardy attack, an exception applies when the plea is a general or open plea, the double jeopardy is apparent from the face of the record, and there is nothing in the record to indicate a waiver of double jeopardy. Novaton v. State, 634 So.2d 607, 609 (Fla.1994); Demps v. State, 965 So.2d 1242, 1243 (Fla. 4th DCA 2007).
In this case, the factual basis for counts four and five offered at the plea colloquy describe only a single taking: “Mr. Brown possessed a gun at that time and pointed the gun against the clerk, the victim in Count Four, Diane Minton, the victim in Count Five, Scott Henderson, and grabbed an amount of cash from the register.” (Emphasis added.) The post-*1233conviction court found in its second summary denial that counts four and five are based on two separate robberies because there were two separate victims. This was error.
A single taking from one register supports only one charge, and the presence of two employees does not transform one robbery into two. Lundy v. State, 614 So.2d 674 (Fla. 2d DCA 1993) (reversing one of two charges for armed robbery after finding only one taking even after defendant pointed a gun at two different employees of the restaurant); see also Nesbitt v. State, 966 So.2d 447, 448 (Fla. 2d DCA 2007) (“If Nesbitt took a single purse, there could only be a single ‘taking’ and, consequently, only a single armed robbery.”). The record in this case does not support two separate robberies in counts four and five, and the double jeopardy violation is thus apparent from the record in this case. Further, there is no indication in the record that Brown waived the double jeopardy claim.
The record attachments supplied by the postconviction court fail to refute and actually establish Brown’s double jeopardy claim. Accordingly, we reverse the order denying Brown’s motion for postconviction relief and remand for the court to vacate the adjudication of guilt and sentence on count five. See Rodriguez v. State, 875 So.2d 642, 645-46 (Fla. 2d DCA 2004) (setting out the proper remedy for a double jeopardy violation). Brown shall be resen-tenced pursuant to a corrected score sheet. In light of our determination as to Brown’s first claim, we decline to address Brown’s claim of ineffective assistance of counsel.
Reversed and remanded with directions.
KELLY and WALLACE, JJ., Concur.
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Fernandez v. State, 199 So. 3d 500 (Fla. 2d DCA 2016)…ral, when the vacation of a conviction would result in changes to the defendant’s scoresheet, the defendant is entitled to be resentenced using a corrected scoresheet. See, e.g., Henry v. State, 64 So. 3d 181, 183 (Fla. 2d DCA 2011); Brown v. State, 1 So. 3d 1231, 1233 (Fla. 2d DCA 2009); Olivera v. State, 92 So. 3d 924, 926 (Fla. 4th DCA 2012), disapproved on other grounds by State v. Tuttle, 177 So. 3d 1246, 1253 (Fla.2015); Williams v. State, 92 So. 3d 322, 322 (Fla. 1st DCA 2012); Capron v. State, 948 So…
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Bailey v. State, 21 So. 3d 147 (Fla. 5th DCA 2009)…eopardy attack, an exception applies when, as in this case, there is a general or open plea, the double jeopardy is apparent from the face of the record, and there is nothing in the record to indicate a waiver of double jeopardy. See Brown v. State, 1 So. 3d 1231 (Fla. 2d DCA 2009), citing Novaton, v. State, 634 So. 2d 607, 609 (Fla. 1994). The appeal is permitted by Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)e., as one “otherwise provided by law.” Barfield v. State, 871 So. 2d 929, 930 (Fla. 5th…
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Holubek v. State, 173 So. 3d 1114 (Fla. 5th DCA 2015)…aton v. State, 634 So. 2d 607, 609 (Fla.1994). Holubek meets the first prong because his plea was a general plea to the court and did not involve a plea bargain. See Godfrey v. State, 947 So. 2d 565, 567 (Fla. 1st DCA 2006); see also Brown v. State, 1 So. 3d 1231, 1232 (Fla. 2d DCA 2009) (noting that the exception applies to an open plea). Second, Holubek argues that a double jeopardy violation is apparent from the record because Count 1 under section 934.215 is subsumed within both Count 2 under section 84…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- Coughlin v. State, 932 So. 2d 1224 (Fla. 2d DCA 2006)
- Plowman v. State, 586 So. 2d 454 (Fla. 2d DCA 1991)
- City OF Miami v. Juarez, 875 So. 2d 642 (Fla. 3d DCA 2004)
- Rodriguez v. State, 875 So. 2d 642 (Fla. 2d DCA 2004)
- Demps v. State, 965 So. 2d 1242 (Fla. 4th DCA 2007)
- Lundy v. State, 614 So. 2d 674 (Fla. 2d DCA 1993)
- Simonelli v. Dep't of Bus. & Prof'l Reg., 958 So. 2d 1125 (Fla. 2d DCA 2007)
- Brown v. State, 958 So. 2d 1125 (Fla. 2d DCA 2007)
- Tavaris Nesbitt v. State, 966 So. 2d 447 (Fla. 2d DCA 2007)