WALTER LATIMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed Latimer's robbery conviction but reversed his simple assault conviction on double jeopardy grounds, holding that assault cannot be separately punished when it is an element of the robbery charge.
A defendant cannot be separately convicted and punished for simple assault when the assault is an element of the robbery charge arising from the same criminal transaction.
[1] When robbery is defined to include assault as an element and the verdict form does not clearly indicate the jury's basis for the robbery conviction, double jeopardy princ…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We must read the verdict in a manner which would give the benefit of the doubt to the defendant.”
The court applied this principle to resolve ambiguity in the verdict form regarding whether the assault was the basis for the robbery conviction.
Latimer was convicted of both robbery with a deadly weapon and simple assault arising from the same incident involving the taking of property from ano…
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We affirm, without discussion, Latimer’s conviction for robbery with a deadly weapon. However, double jeopardy principles preclude Latimer’s conviction for simple assault arising from the same criminal transaction. Robbery involves the “taking of money or other property ... from the person or custody of another ... when in the course of the taking there is the use of force, violence, assault or putting in fear.” § 812.13, Fla. Stat. (2009) (emphasis added). The verdict form gave no indication as to whether the jury determined that the taking in this case constituted robbery because of the accompanying assault on the victim, or based upon some separate use of force or violence. Because “[w]e must read the verdict in a manner which would give the benefit of the doubt to” the defendant, State v. Reardon, 763 So.2d 418, 419 n. 3 (Fla. 5th DCA 2000), we conclude that the convictions for both robbery and simple assault cannot stand. Cf. Young v. State, 43 So.3d 876 (Fla. 5th DCA 2010); West v. State, 21 So.3d 916 (Fla. 5th DCA 2009); Bracey v. State, 985 So.2d 704 (Fla. 5th DCA 2008); Torna v. State, 742 So.2d 366 (Fla. 3d DCA 1999). Accordingly, we reverse the assault conviction and remand with instructions that the assault conviction and sentence be vacated.
AFFIRMED in part; REVERSED in part; and REMANDED.
LAWSON, EVANDER and JACOBUS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bell v. State, 114 So. 3d 229 (Fla. 5th DCA 2013)…5th DCA 2009), and that such violations based on undisputed facts are reviewed de novo. McKinney v. State, 66 So. 3d 852 (Fla.2011). He also correctly notes that separate convictions for robbery and assault violate double jeopardy, Latimer v. State, 44 So. 3d 1239, 1240 (Fla. 5th DCA 2010), and that separate convictions for burglary with assault while armed with a firearm and aggravated assault with a firearm violate double jeopardy. White v. State, 753 So. 2d 668, 669 (Fla. 1st DCA 2000). Although neither o…
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Graves v. State, 95 So. 3d 1033 (Fla. 5th DCA 2012)…equiring different elements of proof,” is by reference to the charging document. 2 So. 3d at 135. This is consistent with the approach this Court has taken in similar double jeopardy cases. See, e.g., Rough-ton, 92 So. 3d 284 n. 1; Latimer v. State, 44 So. 3d 1239 (Fla. 5th DCA 2010). If, as in Gibbs, we do not look at the entire theoretical range of conduct encompassed by the statute but rather compare only the conduct alleged in the information, the lewd or lascivious battery count alleged either penetrati…
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Delgado v. State, 174 So. 3d 1071 (Fla. 5th DCA 2015)…to the robbery and assault convictions obtained on the two counts that went to trial.2 See Bell v. State, 114 So. 3d 229, 230 (Fla. 5th DCA 2013) (noting separate convictions for robbery and assault violate double jeopardy (citing Latimer v. State, 44 So. 3d 1239, 1240 (Fla. 5th DCA 2010) (holding convictions for robbery and simple assault arising from the same criminal episode violate double jeopardy))). Had appellate counsel raised this issue in Delgado’s direct appeal, we would have been constrained to re…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Reardon, 763 So. 2d 418 (Fla. 5th DCA 2000)
- Torna v. State, 742 So. 2d 366 (Fla. 3d DCA 1999)
- Young v. State, 43 So. 3d 876 (Fla. 5th DCA 2010)
- West v. State, 21 So. 3d 916 (Fla. 5th DCA 2009)
- Smith v. State, 985 So. 2d 704 (Fla. 1st DCA 2008)
- Bracey v. State, 985 So. 2d 704 (Fla. 5th DCA 2008)