TAVARIS NESBITT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tavaris Nesbitt appealed the summary denial of his Rule 3.850 postconviction motion challenging his convictions for armed robbery and armed burglary. The court affirmed the denial of most claims but reversed the denial of claim eight regarding potential double jeopardy violations from two armed robbery convictions based on allegedly the same purse taken from two victims.
The court reversed the postconviction court's summary denial of the double jeopardy claim because the information is insufficient to conclusively establish that two separate purses were involved. While multiple robberies of different victims can constitute separate offenses, the charging document created ambiguity about whether Nesbitt took one or two purses, which must be resolved on remand.
[1] A conviction for armed robbery may violate double jeopardy protections if the same criminal episode results in charges for taking the same item from multiple victims.
[2] A postconviction court's denial of a claim is insufficient to conclusively refute a double jeopardy claim if the charging document describes the stolen property as belong…
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“If Nesbitt took a single purse, there could only be a single "taking" and, consequently, only a single armed robbery.”
Establishes the legal principle that double jeopardy protects against multiple convictions for a single taking under armed robbery statute.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNesbitt entered an open guilty plea to two counts of armed robbery and one count of armed burglary of a conveyance. The felony information charged Nes…
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WHATLEY, Judge.
Tavaris Nesbitt appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of all Nesbitt’s claims, save one, without comment. We reverse the denial of claim eight and remand for further proceedings.
Nesbitt entered an open plea of guilty to two counts of armed robbery and one count of armed burglary of a conveyance. In claim eight, Nesbitt claims that his two convictions for armed robbery violate his constitutional protection from double jeopardy because they occurred during the same criminal episode and the State charged him with taking the same item — a purse and its contents — in each. In summarily denying the claim, the postconviction court attached a copy of the felony information and found that the convictions did not violate the protection from double jeopardy because each charge of armed robbery identified a different victim. See Hillman v. State, 410 So. 2d 180, 181 (Fla. 2d DCA 1982) (holding that “two robberies of different people at the same time are two separate offenses calling for two judgments and two sentences” when the defendants were convicted of taking a grandfather’s wallet, pistol, and car, and taking a grandson’s fishing equipment) (citing Hearn v. State, 55 So. 2d 559 (Fla.1951)).
Although the information charged Nes-bitt with separate robberies of two different victims, it described the purse that was taken from them as the property of only one of the victims. If Nesbitt took a single purse, there could only be a single “taking” and, consequently, only a single armed robbery. See § 812.13(1), Fla. Stat. (2004). Furthermore, it is improbable that two separate victims could have had possession of a single purse during Nesbitt’s criminal actions, but it seems equally improbable that both victims carried separate purses belonging to one victim. See id. In any event, the information is insufficient to conclusively refute Nesbitt’s claims, and the limited record before this court contains no further pertinent information.
Accordingly, we reverse the denial of this claim and rémand for further proceedings. On remand, the postconviction court may attach documents that conclusively refute this claim or, if necessary, conduct an evidentiary hearing.
Affirmed in part, reversed in part, and remanded.
ALTENBERND and KELLY, JJ., Concur.
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Brown v. State, 1 So. 3d 1231 (Fla. 2d DCA 2009)…ry into two. Lundy v. State, 614 So. 2d 674 (Fla. 2d DCA 1993) (reversing one of two charges for armed robbery after finding only one taking even after defendant pointed a gun at two different employees of the restaurant); see also Nesbitt v. State, 966 So. 2d 447, 448 (Fla. 2d DCA 2007) (“If Nesbitt took a single purse, there could only be a single ‘taking’ and, consequently, only a single armed robbery.”). The record in this case does not support two separate robberies in counts four and five, and the doubl…
Authorities Cited
- Hearn v. State, 55 So.2d 559 (Fla. 1951)
- Hillman v. State, 410 So. 2d 180 (Fla. 2d DCA 1982)