DAMION DYKES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Damion Dykes was convicted of burglary of a dwelling with assault or battery with a firearm, aggravated battery with a firearm, and aggravated assault with a firearm arising from the same incident. The Fifth District Court of Appeal affirmed the trial court's denial of most of his postconviction double jeopardy claims but remanded for reconsideration of whether the aggravated battery and aggravated assault convictions were subsumed into the burglary conviction in violation of double jeopardy protections.
The court affirmed the trial court's summary denial of most claims but remanded for reconsideration of grounds III and V concerning whether the aggravated battery and aggravated assault convictions were subsumed into the burglary conviction, thereby violating double jeopardy.
[1] Convictions for aggravated battery with a firearm and aggravated assault with a firearm may violate double jeopardy when subsumed into the greater offense of burglary of…
[2] Double jeopardy claims are properly cognizable in a motion for postconviction relief.
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Join FLexlaw to unlock all legal intelligence“convictions for aggravated battery with a firearm and aggravated assault with a firearm violate double jeopardy because they were subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm”
States the controlling legal standard from Hankins v. State that the court applies to Dykes's case
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Join FLexlaw to unlock all legal intelligenceDamion Dykes was convicted of burglary of a dwelling with an assault or battery with a firearm (count 1), aggravated battery with a firearm (count 3),…
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Damion Dykes was convicted of several offenses, including burglary of a dwelling *163with an assault or battery with a firearm (count 1), aggravated battery with a firearm (count 3), and aggravated assault with a firearm (count 5). Although it is not clear from our limited record, the offenses appear to have arisen from the same incident and involved the same victim. In his amended rule 3.850 motion for postconviction relief, in' grounds III and V, Dykes contends that convictions of all three offenses violate his protection against double jeopardy.
“Double jeopardy claims are properly the subject of Rule 3.850 relief.” Rios v. State, 889 So.2d 940, 941 (Fla. 5th DCA 2004) (citing Wilson v. State, 693 So.2d 616 (Fla. 2d DCA 1997)). Recently, in Hankins v. State, 164 So.3d 738, 738 (Fla. 5th DCA 2015), this Court concluded that “convictions for aggravated battery with a firearm and aggravated assault with a firearm violate double jeopardy because they were subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm:.” See McGhee v. State, 133 So.3d 1137 (Fla. 5th DCA 2014) (holding that convictions for burglary of dwelling with assault or battery, aggravated assault with firearm, and domestic violence battery, all involving same victim and occurring in same incident, violated double jeopardy, and required reversal of assault and battery convictions); Estremera v. State, 107 So.3d 511, 512 (Fla. 5th DCA 2013) (holding that defendant’s convictions for aggravated assault with firearm and burglary with assault while armed violated double jeopardy because all elements of crime of aggravated assault with firearm are contained within crime of burglary with assault while armed with firearm); see also Finkley v. State, 16 So.3d 329 (Fla. 4th DCA 2009) (holding aggravated battery is subsumed into greater offense of burglary with aggravated battery).
Consequently, we affirm the trial court’s summary denial of all claims except grounds III and V of Dykes’s amended rule 3,850 motion for postconviction relief. As to those two grounds, we remand to the trial court to determine if double jeopardy bars Dykes’s convictions for aggravated battery with a firearm and aggravated assault with a firearm because they were subsumed into the greater offense of burglary of a dwelling with an assault or battery with a firearm. See Hankins, 164 So.3d at 738; McGhee, 133 So.3d at 1139.
AFFIRMED in part; REVERSED in part; REMANDED.
PALMER, ORFINGER and EDWARDS, JJ., concur.
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Tambriz-Ramirez v. State, 248 So. 3d 1087 (Fla. 2018)…h an assault or battery does not necessarily include an aggravated assault or attempted sexual battery, Tambriz-Ramirez's convictions do not violate the prohibition against double jeopardy. The Fourth District certified conflict with Dykes v. State, 200 So. 3d 162 (Fla. 5th DCA 2016), Hankins v. State , 164 So. 3d 738 (Fla. 5th DCA 2015), Smith v. State , 154 So. 3d 523 (Fla. 1st DCA 2015), McGhee v. State , 133 So. 3d 1137 (Fla. 5th DCA 2014), Green v. State , 120 So. 3d 1276 (Fla. 1st DCA 2013), Estremera v…1 / 2
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Bradford B. Banks, Jr. v. State, 211 So. 3d 1104 (Fla. 5th DCA 2017)…on. In summarily denying the motion, the postconviction court first correctly determined that Banks’s rule 3.850 motion was untimely and successive.2 Although “[djouble jeopardy claims are properly the subject of Rule 3.850 relief,” Dykes v. State, 200 So. 3d 162, 163 (Fla. 5th DCA 2016) (quoting Rios v. State, 889 So. 2d 940, 941 (Fla. 5th DCA 2004)), the two-year time requirement to file a rule 3.850 motion applies to double jeopardy issues raised in the motion. Sanders v. State, 621 So. 2d 723, 727 (Fla.…
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Tambriz-Ramirez v. State, 213 So. 3d 920 (Fla. 4th DCA 2017)…battery while armed with a firearm”); Green v. State, 120 So. 3d 1276, 1278 (Fla. 1st DCA 2013) (same); Estremera v. State, 107 So. 3d 511 (Fla. 5th DCA 2013) (same); White v. State, 753 So. 2d 668, 669 (Fla. 1st DCA 2000) (same); cf Dykes v. State, 200 So. 3d 162, 163 (Fla. 5th DCA 2016) (remanding a rule 3.850 claim for the trial court to determine “if double jeopardy bars [defendant’s convictions for aggravated battery with a firearm and aggravated assault with a firearm because they were subsumed into the…
Authorities Cited
- Edgardo Estremera v. State, 107 So. 3d 511 (Fla. 5th DCA 2013)
- McGHEE v. State, 133 So. 3d 1137 (Fla. 5th DCA 2014)
- Wilson v. State, 693 So. 2d 616 (Fla. 2d DCA 1997)
- Finkley v. State, 16 So. 3d 329 (Fla. 4th DCA 2009)
- Ausencio Rios v. State, 889 So. 2d 940 (Fla. 5th DCA 2004)
- Hankins v. State, 164 So. 3d 738 (Fla. 5th DCA 2015)