BYRON ORTIZ-MEDINA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Ortiz-Medina appealed his convictions for armed kidnapping and aggravated assault with a deadly weapon, claiming they violated double jeopardy. The court agreed that the convictions rested on identical elements of proof and reversed the aggravated assault conviction while affirming the armed kidnapping conviction.
The court held that the convictions violated double jeopardy because both crimes required identical elements of proof under Florida Statute § 775.021(4)(b)1. The aggravated assault conviction was reversed and remanded for vacation, while the armed kidnapping conviction was affirmed.
[1] A defendant's double jeopardy rights are violated when convicted of two offenses requiring identical elements of proof.
[2] A conviction for aggravated assault with a deadly weapon may be barred by double jeopardy if the elements of proof are identical to those of an armed kidnapping charge.
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Join FLexlaw to unlock all legal intelligence“A defendant's double jeopardy rights are violated when he is convicted of two "[o]ffenses which require identical elements of proof." § 775.021(4)(b)1., Fla. Stat.”
Establishes the legal standard for double jeopardy violations under Florida law
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Join FLexlaw to unlock all legal intelligenceAppellant kidnapped and confined a victim by threatening her with a knife and creating fear of violence. The amended information alleged that appellan…
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On Motion for rehearing
We grant the parties’ motions for rehearing, withdraw our previously issued opinion, and substitute the following in its place.
Appellant appeals his convictions and sentences for armed kidnapping and aggravated assault with a deadly weapon, claiming that they violate double jeopardy. We agree and reverse his conviction and sentence for aggravated assault with a deadly weapon.
A defendant’s double jeopardy rights are violated when he is convicted of two “[ojffenses which require identical elements of proof.” § 775.021(4)(b)l., Fla. Stat. In James v. State, 386 So.2d 890, 891 (Fla. 1st DCA 1980), the court found that a claim that the defendant kidnapped the victim while armed with the intent “to inflict bodily harm upon or to terrorize the victim” alleged the same elements of aggravated assault with a firearm. “The proof showed that appellant confined his victim by threatening him with a loaded shotgun.” Id. The court concluded that the aggravated assault conviction was barred by section 775.021(4)(b)l. because both charges rested on identical elements of proof for conviction.
As in James, the amended information alleged that appellant kidnapped the victim while armed with the intent to “inflict bodily harm upon or to terrorize the victim.” The proof showed that appellant confined and moved the victim by threatening her with a knife and creating within her a fear of violence. Thus, the conviction of both crimes required identical elements of proof, contrary to section 775.021(4)(b)l. Accordingly, we reverse and remand for the trial court to vacate appellant’s conviction for aggravated assault with a deadly weapon. We affirm appellant’s conviction and sentence for armed kidnapping, and we remand for re-sentencing under a revised scoresheet and for the trial court to correct the final judgment to reflect that the jury determined appellant was not masked at the time of the offense. Because we affirm appellant’s conviction for armed kidnapping, we need not address the state’s cross-appeal regarding suppression of appellant’s confession. Capehart v. State, 583 So.2d 1009, 1016 n. 9 (Fla.1991).
*1184 Affirmed in part, reversed in part, and remanded.
POLEN, GROSS and LEVINE, JJ., concur.
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Citator
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Palmer v. State, 254 So. 3d 426 (Fla. 4th DCA 2018)
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Solomon v. State, 206 So. 3d 822 (Fla. 2d DCA 2016)…separate and different offenses because they proscribe different acts.”); Virgil v. State, 894 So. 2d 1053- (Fla. 5th DCA 2005) (affirming convictions for aggravated battery and aggravated assault). Mr. Solomon’s reliance on Ortiz-Medina v. State, 126 So. 3d 1183 (Fla. 4th DCA 2012), and James v. State, 386 So. 2d 890 (Fla. 1st DCA 1980), does not advance his cause. Ortiz-Medina involved a conviction for armed kidnapping and aggravated assault with a deadly weapon. Ortiz-Medina relied solely on James which i…
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James v. State, 264 So. 3d 982 (Fla. 4th DCA 2019)…or grand theft of the same vehicle that was involved in the carjacking. ---PAGE 5--- - 5 - “A defendant’s double jeopardy rights are violated when he is convicted of two offenses which require identical elements of proof.” Ortiz–Medina v. State, 126 So. 3d 1183, 1183 (Fla. 4th DCA 2012) (internal quotation marks and citation omitted). But, “the prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts.” Hayes v.…
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
- Capehart v. State, 583 So. 2d 1009 (Fla. 1991)
- James v. State, 386 So. 2d 890 (Fla. 1st DCA 1980)