ALLEN K. FINKLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Allen Finkley appealed his conviction for four counts including burglary with aggravated battery, robbery with aggravated battery, aggravated battery, and grand theft of an automobile. The court reversed his aggravated battery conviction as a double jeopardy violation because it was subsumed within and used to enhance the greater offenses, requiring remand for re-sentencing on the remaining counts.
The court reversed the aggravated battery conviction as violating double jeopardy because the defendant was being punished more than once for the same aggravated battery offense. The court affirmed the denial of the ineffective assistance of counsel claim on direct appeal because the facts supporting such a claim did not appear on the face of the record, but left the issue open for a Rule 3.850 motion.
[1] A conviction for aggravated battery violates double jeopardy when it is subsumed within greater offenses that were enhanced by the same aggravated battery.
[2] Ineffective assistance of counsel claims are generally not addressed on direct appeal unless the facts giving rise to the claim are apparent on the face of the record, a…
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Join FLexlaw to unlock all legal intelligence“Because the defendant is being punished more than once for the same aggravated battery, we must reverse his conviction for aggravated battery.”
Establishes the core holding that multiple punishments for the same conduct violates double jeopardy
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Join FLexlaw to unlock all legal intelligenceFinkley was convicted of burglary of a dwelling with aggravated battery, robbery with aggravated battery, aggravated battery, and grand theft of an au…
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Allen Finkley, the defendant below, appeals his conviction and sentence on four counts: burglary of a dwelling with aggravated battery, robbery with aggravated battery, aggravated battery, and grand theft of an automobile. The defendant argues his conviction for aggravated battery violates double jeopardy because it was subsumed within the greater offenses of burglary with aggravated battery and robbery with aggravated batteiy. We agree.
“Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo.” Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008) (citation omitted). Here, it was undisputed the aggravated battery for which the defendant was convicted did not involve a weapon and was the same event which enhanced the burglary and robbery convictions. Because the defendant is being punished more than once for the same aggravated battery, we must reverse his conviction for aggravated battery. See Ramirez v. State, 928 So.2d 420, 421 (Fla. 3d DCA 2006) (double jeopardy clause prevented defendant from being convicted of aggravated battery since defendant’s kidnapping conviction was enhanced based on aggravated battery); Bradham v. State, 657 So.2d 40, 41 (Fla. 1st DCA 1995) (reversing conviction for aggravated battery because defendant already was being punished through re-classification of kidnapping offense to life felony due to aggravated battery). To the extent reversing the aggravated battery conviction will require *330correction of the defendant’s scoresheet, we also remand for re-sentencing on the other three counts. Bradham, 657 So.2d at 41.
The defendant also argues in this direct appeal that his trial counsel was ineffective. On that argument, we affirm because the defendant has not shown any basis to raise ineffectiveness of counsel on direct appeal. See Jones v. State, 815 So.2d 772, 772 (Fla. 4th DCA 2002) (“[Un-effective assistance of counsel will only be addressed on direct appeal for the first time when the facts giving rise to the claim are apparent on the face of the record, a conflict of interest is shown, or prejudice to the defendant is shown.”). This opinion, however, is without prejudice to the defendant raising his claim in an appropriate motion under Florida Rule of Criminal Procedure 3.850. We make no comment on whether such a motion would have merit or not.
Affirmed in part, reversed, in part, and remanded for re-sentencing.
DAMOORGIAN and LEVINE, JJ„ concur.
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Latos v. State, 39 So. 3d 511 (Fla. 4th DCA 2010)…le and drug possession without violating double jeopardy. This appeal followed. “ ‘Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo.’ ” Finkley v. State, 16 So. 3d 329, 329 (Fla. 4th DCA 2009) (quoting Binns v. State, 979 So. 2d 439, 441 (Fla. 4th DCA 2008)). A double jeopardy violation “is a fundamental error which can be raised for the first time on appeal.” Tannihill v. State, 848 So. 2d 442, 444 (Fla. 4th DCA…
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Damion Dykes v. State, 200 So. 3d 162 (Fla. 5th DCA 2016)…lt with firearm and burglary with assault while armed violated double jeopardy because all elements of crime of aggravated assault with firearm are contained within crime of burglary with assault while armed with firearm); see also Finkley v. State, 16 So. 3d 329 (Fla. 4th DCA 2009) (holding aggravated battery is subsumed into greater offense of burglary with aggravated battery). Consequently, we affirm the trial court’s summary denial of all claims except grounds III and V of Dykes’s amended rule 3,850 mo…
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Babrow v. State, 62 So. 3d 1205 (Fla. 4th DCA 2011)…rst two issues lack merit, we reverse Babrow’s convictions for assault and battery. “Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo.” Finkley v. State, 16 So. 3d 329, 329 (Fla. 4th DCA 2009) (quoting Binns v. State, 979 So. 2d 439, 441 (Fla. 4th DCA 2008) (citation omitted)). “The Double Jeopardy Clause in both the state and federal constitutions protects criminal defendants from multiple convictions and punishm…
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
- Leighton Binns v. State, 979 So. 2d 439 (Fla. 4th DCA 2008)
- Jones v. State, 815 So. 2d 772 (Fla. 4th DCA 2002)
- Bradham v. State, 657 So. 2d 40 (Fla. 1st DCA 1995)
- Ramirez v. State, 928 So. 2d 420 (Fla. 3d DCA 2006)