PHILLIP L. AUSTIN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Phillip Austin appeals the denial of his post-conviction motion under Florida Rule of Criminal Procedure 3.850, raising eleven grounds for relief. The court affirms the denial of grounds one through ten but reverses the denial of ground eleven regarding ineffective assistance of counsel for failing to move for acquittal on a duplicative armed robbery charge.
Counsel was potentially ineffective under the circumstances presented. The fact that multiple victims were involved does not by itself refute the claim that only a single robbery charge was supported by the facts when there was a single taking from a single register. The postconviction court must conduct an evidentiary hearing or attach portions of the record that conclusively refute Austin's claim.
[1] A post-conviction court's summary denial of a claim of ineffective assistance of counsel is insufficient if the reasoning does not conclusively refute the claim.
[2] Separate convictions for armed robbery involving multiple victims during a single criminal transaction may violate double jeopardy if there was only a single taking of pr…
Previewing 2 of 4 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“A single taking from one register supports only one charge, and the presence of two employees does not transform one robbery into two.”
Establishes the legal standard that multiple victims in a single taking from one register does not support multiple robbery charges.
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Join FLexlaw to unlock all legal intelligenceAustin was convicted of two armed robberies with a firearm. Both convictions stemmed from a single criminal transaction involving a single taking from…
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Phillip L. Austin, Jr., appeals the post-conviction court’s order denying his motion filed under Florida Rule of Criminal Procedure 3.850. In his motion, Austin alleged eleven grounds for relief. Following a hearing on some of the grounds, the postconviction court entered an order denying the motion in its entirety. We affirm the denial of grounds one through ten without comment. However, as to ground eleven, we reverse.
In ground eleven, Austin alleged counsel was ineffective for failing to move for a judgment of acquittal on one of Austin’s two robbery with a firearm charges. He insisted that the charges stemmed from a single criminal transaction and the facts only supported a single charge because there was a single taking of property. The postconviction court summarily denied this claim, reasoning that double jeopardy was not violated because there were multiple victims.
This reasoning is insufficient to conclusively refute Austin’s claim. Generally, “separate convictions for different offenses involving multiple victims who are killed or injured during the same episode do not violate double jeopardy.” Sears v. State, 790 So.2d 1154, 1155 (Fla. 2d DCA 2001). However, the record shows that *1018Austin’s two armed robbery convictions stemmed from a single criminal transaction in which there was a single taking from a single register, involving multiple uses of force against two different employees. “A single taking from one register supports only one charge, and the presence of two employees does not transform one robbery into two.” Brown v. State, 1 So.3d 1231, 1233 (Fla. 2d DCA 2009). When presented with multiple armed robbery charges like those presented by this case, a court must inquire “whether there have been successive and distinct forceful takings with a separate and independent intent for each transaction.” Brown v. State, 430 So.2d 446, 447 (Fla.1983). Accordingly, the fact that there were multiple victims does not by itself refute Austin’s claim.
Therefore, we reverse the denial of ground eleven and remand to the postcon-viction court to hold an evidentiary hearing or attach portions of the record that conclusively refute Austin’s claim.
Affirmed in part, reversed in part, and remanded.
WALLACE, and ROTHSTEIN-YOUAKIM, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Brown v. State, 430 So. 2d 446 (Fla. 1983)
- Brown v. State, 1 So. 3d 1231 (Fla. 2d DCA 2009)
- Sears v. State, 790 So. 2d 1154 (Fla. 2d DCA 2001)