ALWIN TUMBLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Convictions for resisting an officer with violence and resisting an officer without violence arising from a single criminal episode violate double jeopardy protections.
The defendant was in custody for a murder charge and appeared in a jail jumpsuit and restraints during a juvenile dependency proceeding. When ordered …
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POLEN, J.
Appellant Alwin Tumblin timely appeals convictions for battery on a law enforcement officer, resisting an officer with violence, and resisting an officer without violence.
The charged offenses occurred in a family courtroom during a juvenile dependency proceeding involving Tumblin’s youngest daughter. Tumblin was in custody facing a pending murder charge and appeared before the magistrate in an orange jail jumpsuit and restraints. Tumblin wanted to address the court, and was allowed to do so, but after interrupting, the magistrate ordered Tumblin be removed. Tumblin resisted and a struggle ensued in which a deputy’s finger was broken and another deputy was spit at.
Tumblin argues he was deprived of his right to a fair trial when his attorney permitted the jury to learn that Tumblin was wearing a prison jumpsuit, was restrained, and faced a pending murder charge at the time of the juvenile depen dency proceeding. There was no error as it appears those facts were necessary to explain the circumstances of the events that transpired before the magistrate.
Tumblin further argues that he should not have been convicted of both resisting an officer with violence and resisting an officer without violence as both offenses arose from a single criminal episode. He claims convictions for both offenses violate his constitutional protection against double jeopardy. We agree.
We remand for resentencing as convictions for resisting arrest with violence and resisting arrest without violence are prohibited when the acts of resisting occurred as part of a single criminal episode. The lesser charge should be vacated. See Williams v. State, 959 So. 2d 790 (Fla. 2d DCA 2007).
Affirmed in part, reversed in part, and remanded.
STONE and MAY, JJ., concur.
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Citator
Cited By
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Quezada v. State, 992 So. 2d 916 (Fla. 4th DCA 2008)…lesser included offense. We reverse his conviction for resisting without violence and remand for resentencing, because his convictions arose out of the same criminal episode and therefore constitute a double jeopardy violation. See Tumblin v. State, 974 So. 2d 1173 (Fla. 4th DCA 2008) (holding that convictions of resisting with violence and resisting without violence violate double jeopardy principles, requiring vacation of the lesser charge, where both offenses arose from a single criminal episode). See also…
Authorities Cited
- Williams v. State, 959 So. 2d 790 (Fla. 2d DCA 2007)