LEONARD K. BRACEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leonard Bracey was convicted of both burglary with a battery and simple battery stemming from the same incident. The Fifth District Court of Appeal held that convicting a defendant of both offenses violates double jeopardy protections because the simple battery is subsumed into the burglary with a battery charge, and reversed the simple battery conviction.
A defendant cannot be convicted of both burglary with a battery and simple battery where both offenses involve the same battery, as this violates double jeopardy protections. The court affirmed the burglary with a battery conviction but reversed the simple battery conviction.
[1] A conviction for simple battery is improper when it is subsumed into a conviction for burglary with a battery arising from the same incident, as such dual convictions vio…
[2] A double jeopardy violation constitutes fundamental error that may be raised for the first time on appeal.
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Join FLexlaw to unlock all legal intelligence“holding improper to convict defendant for both burglary with battery and simple battery where both offenses involve same battery”
Establishes the legal principle that dual convictions for these offenses based on the same battery violate double jeopardy
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Join FLexlaw to unlock all legal intelligenceLeonard K. Bracey was convicted of burglary with a battery and simple battery, both arising from the same incident. The trial court adjudicated him gu…
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ORFINGER, J.
In this Anders1 appeal, appellate counsel was directed to file a supplemental brief addressing a double jeopardy issue. Having now received the supplemental briefs, we affirm in part and reverse in part.
Leonard K. Bracey was convicted of burglary with a battery and simple battery and adjudicated guilty of both offenses. Our preliminary review of the case suggested that the simple battery was subsumed into the burglary with a battery offense. See Lyles v. State, 724 So. 2d 138 (Fla. 1st DCA 1998) (holding improper to convict defendant for both burglary with battery and simple battery where both offenses involve same battery). Convictions for both offenses, arising from the same incident, would violate Bracey’s double jeopardy protection. See Mansfield v. State, 954 So. 2d 74, 77 (Fla. 4th DCA 2007). A double jeopardy violation is fundamental error, which can be raised for the first time on appeal. State v. Johnson, 483 So. 2d 420 (Fla.1986).
The State properly concedes error, acknowledging that under the facts of this case, it was error to convict Bracey of both burglary with a battery and simple battery. See Bradley v. State, 540 So. 2d 185 (Fla. 5th DCA 1989). Accordingly, we affirm Bracey’s conviction and sentence for burglary with a battery, but reverse the simple battery conviction. On remand, the trial court shall vacate that conviction.
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
PALMER, C.J. and SAWAYA, J„ concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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Latimer v. State, 44 So. 3d 1239 (Fla. 5th DCA 2010)…63 So. 2d 418, 419 n. 3 (Fla. 5th DCA 2000), we conclude that the convictions for both robbery and simple assault cannot stand. Cf. Young v. State, 43 So. 3d 876 (Fla. 5th DCA 2010); West v. State, 21 So. 3d 916 (Fla. 5th DCA 2009); Bracey v. State, 985 So. 2d 704 (Fla. 5th DCA 2008); Torna v. State, 742 So. 2d 366 (Fla. 3d DCA 1999). Accordingly, we reverse the assault conviction and remand with instructions that the assault conviction and sentence be vacated. AFFIRMED in part; REVERSED in part; and REMAND…
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Young v. State, 43 So. 3d 876 (Fla. 5th DCA 2010)…Reardon, 763 So. 2d 418, 419 n. 3 (Fla. 5th DCA 2000). Convictions for both burglary with a battery and for the lesser included offense of battery violate double jeopardy. See, e.g., West v. State, 21 So. 3d 916 (Fla. 5th DCA 2009); Bracey v. State, 985 So. 2d 704 (Fla. 5th DCA 2008). The facts in this case, as acknowledged by the State, are almost indistinguishable from the factual scenario addressed in Torna v. State, 742 So. 2d 366 (Fla. 3d DCA 1999). There, the jury similarly found the defendant guilty o…
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West v. State, 21 So. 3d 916 (Fla. 5th DCA 2009)…s have consistently held that convictions for burglary with a battery in violation of section 810.02(2)(a), Florida Statutes (2006), and battery in violation of section 784.03(l)(a), Florida Statutes (2006), violate double jeopardy. Bracey v. State, 985 So. 2d 704, 705 (Fla. 5th DCA 2008); Lewis v. State, 740 So. 2d 82, 82 (Fla. 3d DCA 1999); Lyles v. State, 724 So. 2d 138, 138 (Fla. 1st DCA 1998); Bradley v. State, 540 So. 2d 185, 187 (Fla. 5th DCA 1989); Spradley v. State, 537 So. 2d 1058,1061 (Fla. 1st DCA…
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
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- State v. Johnson, 483 So. 2d 420 (Fla. 1986)
- Bradley v. State, 540 So. 2d 185 (Fla. 5th DCA 1989)
- Mansfield v. State, 954 So. 2d 74 (Fla. 4th DCA 2007)
- Lyles v. State, 724 So. 2d 138 (Fla. 1st DCA 1998)