TALVIN THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that convictions for domestic battery by strangulation and felony battery arising from the same event violate double jeopardy principles.
[1] A defendant does not waive double jeopardy claims by entering an open plea.
[2] A conviction that violates double jeopardy constitutes fundamental error that may be raised for the first time on appeal.
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded open to multiple convictions, including domestic battery by strangulation and felony battery. He appealed, arguing these two convict…
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Appellant appeals from multiple convictions following his open plea and sentence to twenty-two years in prison, arguing that two of his convictions violate double jeopardy. We agree and reverse on this issue. Appellant also raises arguments with respect to the cross-examination of a witness at sentencing and a no contact provision in the sentencing order. We affirm these issues without further discussion.
Appellant argues that his convictions for domestic battery by strangulation and felony battery arising out of the same event against a single victim violate double jeopardy. “A defendant who enters a general or open plea does not waive double jeopardy claims.” Demps v. State, 965 So.2d *11891242, 1243 (Fla. 4th DCA 2007). A conviction that violates double jeopardy constitutes fundamental error that may be raised for the first time on appeal. Kilmartin v. State, 848 So.2d 1222, 1224 (Fla. 1st DCA 2008). Section 775.021(4)(b)2., Florida Statutes, precludes separate convictions and sentences where the “[o]f-fenses ... are degrees of the same offense as provided by statute.”
The Fifth District recently addressed this issue in Ramirez v. State, 113 So.3d 105, 108 (Fla. 5th DCA 2013), and held that double jeopardy “precludes convictions for both felony battery (one prior) and domestic battery by strangulation arising out of the same event because they are both aggravated forms of simple battery.” The court reasoned that section 784.03, Florida Statutes, “establishes the crime of battery, and then enhances the degree of that crime if, as here, the defendant has a prior battery conviction.” Id. Similarly, “simple battery is [a] category one lesser included offense of domestic battery by strangulation.” Id. at 109. The same rationale applies to the instant case. Accordingly, we vacate appellant’s conviction for felony battery, affirm his other convictions, and remand for resen-tencing.
Affirmed in part, reversed in part, and remanded.
TAYLOR, LEVINE and KLINGENSMITH, JJ., concur.
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Talvin Thompson v. State, 202 So. 3d 927 (Fla. 4th DCA 2016)…ims one and three. We disagree with the State’s argument that this Court already addressed appellant’s second claim in prior appeals. The issue presented in claim two was not addressed in either of appellant’s prior appeals. See Thompson v. State, 123 So. 3d 1188 (Fla. 4th DCA 2013); Thompson v. State, 172 So. 3d 884 (Fla. 4th DCA 2015) (table). On remand, the trial court shall address all of appellant’s claims. Reversed and remanded for farther proceedings. TAYLOR, GERBER and KLINGENSMITH, JJ., concu…
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Jahman Whitfield v. State, 202 So. 3d 456 (Fla. 5th DCA 2016)…DCA 2015). Section 784.041(2)(a), Florida Statutes (2012), criminalizes domestic battery by strangulation (count four). It is an aggravated form of simple battery. Ramirez v. State, 113 So. 3d 105, 108 (Fla. 5th DCA 2013); accord Thompson v. State, 123 So. 3d 1188, 1188-89 (Fla. 4th DCA 2013). Count six charged Whitfield with battery on a person sixty-five years or older. This is a reclassified version of simple battery, defined simply as a battery on a person sixty-five years of age or older. § 784.08(2), Fl…
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Taylor v. State, 205 So. 3d 866 (Fla. 4th DCA 2016)…s of domestic battery by strangulation subsume the elements of simple battery, and both convictions stemmed from [Ajppellant’s single act of choking the victim.” Pottle v. State, 168 So. 3d 1290, 1290 (Fla. 1st DCA 2015). See also Thompson v. State, 123 So. 3d 1188, 1188 (Fla. 4th DCA 2013); Ramirez v. State, 113 So. 3d 105, 108 (Fla. 5th DCA 2013). We therefore reverse and remand for the trial court to vacate Appellant’s conviction and sentence for simple battery. Affirmed in part, reversed in part and re…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Kilmartin v. State, 848 So. 2d 1222 (Fla. 1st DCA 2003)
- Ramirez v. State, 113 So. 3d 105 (Fla. 5th DCA 2013)
- Demps v. State, 965 So. 2d 1242 (Fla. 4th DCA 2007)