EDUARDO JULIAO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eduardo Juliao appeals his conviction on multiple counts arising from a single criminal episode against his wife. The appellate court reverses convictions for felony battery and one count of battery on double jeopardy grounds, while affirming convictions for aggravated battery, false imprisonment, tampering with a witness, and one count of battery.
The court affirmed convictions for aggravated battery, false imprisonment, tampering with a witness, and one count of battery, but reversed the convictions for felony battery and one count of battery because these convictions violated double jeopardy principles. Felony battery's elements are subsumed within aggravated battery, and the two battery convictions were based on identical elements of proof.
[1] A violation of double jeopardy is a fundamental error that may be raised for the first time on appeal.
[2] The "same elements" test under section 775.021(4)(a), Florida Statutes, is used to determine if multiple convictions and punishments are permissible for crimes committed…
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Join FLexlaw to unlock all legal intelligence“a violation of double jeopardy is a fundamental error which can be raised for the first time on appeal”
Establishes that double jeopardy violations need not be raised at trial and can be reviewed for the first time on appeal.
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Join FLexlaw to unlock all legal intelligenceJuliao was charged with aggravated battery (deadly weapon), domestic battery by strangulation, false imprisonment, felony battery (great bodily harm),…
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Eduardo Juliao appeals his conviction of aggravated battery, false imprisonment, felony battery, tampering with a witness, and two counts of battery. Juliao raises five issues on appeal, two of which argue double jeopardy violations. We reverse on the two issues raising double jeopardy violations. We affirm without discussion the *1153trial court rulings on the three other issues raised.
The State charged Juliao with aggravated battery (deadly weapon), domestic battery by strangulation, false imprisonment, felony battery (great bodily harm), tampering with a witness, and domestic battery. His wife was the victim of all the crimes charged. All of the offenses charged against Juliao occurred in the apartment he shared with his wife and during a single criminal episode. The jury found him guilty as charged on all counts except domestic battery by strangulation, in which the jury found him guilty of the lesser-included offense of battery.' The trial court sentenced him on each charge.
The defendant raised no double jeopardy issues before the trial court. However, “a violation of double jeopardy 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 2003). Whether double jeopardy is violated is a legal determination, reviewed de novo. State v. Paul, 934 So.2d 1167, 1171 (Fla.2006) (citing State v. Florida, 894 So.2d 941, 945 (Fla.2005)).
Section 775.021(4)(a), Florida Statutes (2009), requires the use of the Bloekbwrger1 “same elements” test in determining if multiple convictions and punishments are allowed for crimes committed during the same criminal episode. Ramirez v. State, 113 So.3d 105, 107 (Fla. 5th DCA 2013). If each offense “has an element that the other does not, the court must then determine if one of the exceptions set forth in section 775.021(4)(b) applies.” Id. (citing Valdes v. State, 3 So.3d 1067,1070 (Fla.2009)).
Those exceptions are: (1) offenses which require identical elements of proof; (2) offenses which are degrees of the same offense as provided by statute; and (3) offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.
The State concedes in this case that the felony battery conviction must be vacated because all of the elements of felony battery (great bodily harm) are subsumed in the elements of aggravated battery (deadly weapon), and felony battery is a category one necessarily included offense of aggravated battery. See §§ 784.041, 784.045, Fla. Stat. (2009); see also Fla. Std. Jury Instr. (Crim.) 8.4, 8.5. The State also concedes that the convictions for battery under counts two and six are based on the same conduct, requiring identical elements of proof. Therefore, the conviction and sentence for one of those counts must be vacated.
We affirm Juliao’s convictions and sentences for aggravated battery, false imprisonment, tampering with a witness, and one count of battery. We reverse Juliao’s convictions and sentences for felony battery and the other count of battery and remand the case for the trial court to vacate those convictions and sentences.
Affirmed in part and reversed in part, and remanded for further proceedings.
TAYLOR and KLINGENSMITH, JJ„ concur.
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Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Blockburger v. United States, 284 U.S. 299 (U.S. 1932)
- Eli Enrique Valdes v. State, 3 So. 3d 1067 (Fla. 2009)
- State v. Paul, 934 So. 2d 1167 (Fla. 2006)
- State v. Florida, 894 So. 2d 941 (Fla. 2005)
- Tannihill v. State, 848 So. 2d 442 (Fla. 4th DCA 2003)
- Ramirez v. State, 113 So. 3d 105 (Fla. 5th DCA 2013)