NELSON BAPTISTE, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Nelson Baptiste petitioned for habeas corpus alleging ineffective assistance of appellate counsel. The Fourth District Court of Appeal granted the petition in part, finding that appellate counsel was ineffective for failing to raise a double jeopardy violation based on Baptiste's simultaneous convictions for home invasion robbery and burglary arising from a single criminal episode.
Appellate counsel was ineffective for failing to raise the double jeopardy violation, as it is a fundamental error that can be raised on appeal and was not expressly waived by the open plea. The court rejected the citation error argument as meritless because trial counsel failed to preserve the issue by moving to dismiss the charging document, and Baptiste was not prejudiced by the error.
[1] Failure to raise a valid double jeopardy claim on direct appeal can constitute ineffective assistance of appellate counsel.
[2] A double jeopardy violation is a fundamental error that can be raised for the first time on appeal despite the lack of preservation.
Previewing 2 of 6 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“It is well settled in caselaw that convictions for home invasion robbery and burglary violate double jeopardy.”
Establishes the legal principle that these dual convictions from a single episode are unconstitutional under double jeopardy doctrine
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Join FLexlaw to unlock all legal intelligenceNelson Baptiste was convicted of both home invasion robbery and burglary arising from a single criminal episode. He entered open pleas to these charge…
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Nelson Baptiste petitions for a writ of habeas corpus alleging ineffective assistance of appellate counsel based on three grounds. We write to address the first and the third grounds, and deny the second ground without further comment.
Baptiste alleges in the first ground that his convictions for both home invasion robbery and burglary, which arose from a single criminal episode, violate double jeopardy. Failure to raise a valid double jeopardy claim on direct appeal can constitute ineffective assistance of appellate counsel. Perri v. State, 154 So.3d 1204, 1205 (Fla. 2d DCA 2015). A double jeopardy violation is a fundamental error that can be raised for the first time on appeal despite the lack of preservation. Latos v. State, 39 So.3d 511, 513 (Fla. 4th DCA 2010). An open plea does not waive the error where the double jeopardy viola*748tion is clear from the face. of the record and where there is no express waiver. See id. at 514-15 (citing Labovick v. State, 958 So.2d 1065, 1067 (Fla. 4th DCA 2007)).
It is well settled in caselaw that convictions for home invasion robbery and burglary violate double jeopardy. See, e.g., Perez v. State, 951 So.2d 859, 859 (Fla. 2d DCA 2006); Black v. State, 677 So.2d 22, 22 (Fla. 4th DCA 1996). Because there is nothing in the record to show that Baptiste expressly waived a double jeopardy violation during the open pleas, appellate counsel was ineffective in failing to raise this issue. See Perri, 154 So.3d at 1205. If the issue had been.raised, it would have resulted in reversal.
Regarding the remedy, Baptiste argues that he should be allowed to withdraw his pleas. Because the double jeopardy issue was not raised in a motion to withdraw plea, this argument was not preserved for appeal, and plea withdrawal must be pursued through a rule 3.850 motion filed in the trial court. - See id. at 1205 n. 2. The proper remedy is to vacate the conviction for the lesser offense.1 Id. at 1205.
As to ground three, Baptiste alleges and the State concedes that an error occurred in the citation to the subsection of the kidnapping statute in both the amended indictment and judgment. Baptiste’s argument that appellate counsel should have argued that he was convicted of an uncharged crime based on this citation error is meritless. Because trial counsel did not file a motion to dismiss the charging document, the error was not preserved, and appellate counsel was not deficient. See Jones v. State, 415 So.2d 852, 853 (Fla. 5th DCA 1982). Baptiste was aware of the offense to which he pled and was not prejudiced in any way by the error. See Fla. R.Crim. P. 3.140(d)(1), (o).
We grant the petition as to the double jeopardy violation only and remand for the trial court to vacate the conviction and sentence for the lesser offense. We also direct the trial court to correct the citation error in the judgment to refer to the proper subsection of the kidnapping statute, section 787.01(l)(a), Florida Statutes.
Granted in part and remanded with directions.
GROSS, MAY and LEVINE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Baptiste v. State, 237 So. 3d 367 (Fla. 4th DCA 2018)
Authorities Cited
- Emmett Black v. State, 677 So. 2d 22 (Fla. 4th DCA 1996)
- Ulysses Jones v. State, 415 So. 2d 852 (Fla. 5th DCA 1982)
- Labovick v. State, 958 So. 2d 1065 (Fla. 4th DCA 2007)
- Latos v. State, 39 So. 3d 511 (Fla. 4th DCA 2010)
- Perez v. State, 951 So. 2d 859 (Fla. 2d DCA 2006)
- Tuttle v. State, 137 So. 3d 393 (Fla. 2d DCA 2014)
- Perri v. State, 154 So. 3d 1204 (Fla. 2d DCA 2015)