MARIO BABROW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mario Babrow appeals his convictions for burglary with assault or battery, assault, and battery. The Florida Fourth District Court of Appeal affirms the burglary conviction but reverses and remands the assault and battery convictions as violative of double jeopardy protections when all three offenses arose from the same victim and incident.
Babrow's convictions for assault and battery must be vacated because they violate the Double Jeopardy Clause when imposed alongside a conviction for burglary with assault or battery arising from the same criminal episode, particularly where the verdict form does not specify whether the jury found burglary with assault or burglary with battery.
[1] A conviction for burglary with assault or battery, assault, and battery arising from the same incident and victim violates the constitutional prohibition against double j…
[2] The state's closing argument did not constitute fundamental error.
Previewing 2 of 4 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“The Double Jeopardy Clause in both the state and federal constitutions protects criminal defendants from multiple convictions and punishments for the same offense.”
Establishes the governing legal principle that double jeopardy protection applies to bar separate convictions for the same offense.
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Join FLexlaw to unlock all legal intelligenceFollowing a jury trial, Babrow was found guilty of burglary with assault or battery, assault, and battery. All three counts involved the same victim a…
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Defendant, Mario Babrow, appeals his convictions and sentences for burglary with assault or battery, assault, and battery. Babrow raises three issues on appeal: (1) the state’s closing argument constituted fundamental error; (2) Babrow was improperly sentenced as a prison re-leasee reoffender; and (3) Babrow’s convictions for assault and battery violated his constitutional double jeopardy protection. While we find the first 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 punishments for the same offense.” McKinney v. State, 51 So.3d 645, 647 (Fla. 1st DCA 2011) (quoting Gordon v. State, 780 So.2d 17, 19 (Fla.2001)).
In the instant case, the state concedes that Babrow’s convictions for assault and battery should be vacated because they violate double jeopardy. Following a jury trial, Babrow was found guilty of burglary with assault or battery, assault, and battery. All three counts involved the same victim and incident and the verdict form did not indicate whether the jury determined Babrow had committed “burglary with an assault,” or “burglary with a battery.” Consequently, Babrow’s convictions violated the constitutional prohibition against double jeopardy. See, e.g., Torna v. State, 742 So.2d 366, 367 (Fla. 3d DCA 1999) (holding that convictions for both burglary with an assault and/or battery, and simple battery, arising from the same *1207criminal episode, violated the constitutional prohibition against double jeopardy, absent specification that former conviction was for burglary with an assault, rather than burglary with a battery).
Accordingly, we reverse and remand for the trial court to vacate Babrow’s convictions for assault and battery because they violate double jeopardy. We affirm Ba-brow’s conviction for burglary with assault or battery, and remand for resentencing on this conviction.
Affirmed in Part; Reversed in Part and Remanded.
GROSS, C.J., and CIKLIN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McGHEE v. State, 133 So. 3d 1137 (Fla. 5th DCA 2014)…s for both the burglary and the aggravated assault violate the prohibition against double jeopardy.” (citing Estremera v. State, 107 So. 3d 511 (Fla. 5th DCA 2013); White v. State, 753 So. 2d 668, 669 (Fla. 1st DCA 2000))); see also Babrow v. State, 62 So. 3d 1205, 1206 (Fla. 4th DCA 2011). The conviction for battery must also be reversed because a conviction for both burglary with an assault or battery and simple battery arising from the same criminal episode also violates double jeopardy. Torna v. State, 7…
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Barber v. State, 263 So. 3d 1133 (Fla. 1st DCA 2019)…conviction had no impact on Appellant’s scoresheet or sentence. 3 assault and/or battery and simple battery when it is unclear whether the jury convicted the defendant of burglary with assault or burglary with battery. See Babrow v. State, 62 So. 3d 1205 (Fla. 4th DCA 2011); Young v. State, 43 So. 3d 876 (Fla. 5th DCA 2010); Torna v. State, 742 So. 2d 366 (Fla. 3d DCA 1999). Here, the verdict form for count I reflects that the jury found Appellant guilty of both burglary with assault and burgl…
Authorities Cited
- Bryon Gordon v. State, 780 So. 2d 17 (Fla. 2001)
- Leighton Binns v. State, 979 So. 2d 439 (Fla. 4th DCA 2008)
- Torna v. State, 742 So. 2d 366 (Fla. 3d DCA 1999)
- Santeris T. McKINNEY v. State, 51 So. 3d 645 (Fla. 1st DCA 2011)
- Finkley v. State, 16 So. 3d 329 (Fla. 4th DCA 2009)