RODRICK NEWTON ALLEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2014-09-12
No. 5D13-3160
SAWAYA, ORFINGER, and BERGER, JJ., concur.
146 So. 3d 1262 Florida District Court of Appeal, Fifth District (2014) Positive Treatment
Cited by 1 case
Topics
Lesser Included Offense Double Jeopardy

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Rodrick Newton Allen was convicted of trespass, battery, and domestic battery by strangulation. The victim was his former girlfriend. Allen contends that his convictions for battery and domestic battery by strangulation violate the prohibition against double jeopardy and that his conviction for battery must be reversed. The State concedes that the two convictions occurred at the same time and location, were committed against the same victim during the same episode, and no temporal break occurred between the commission of the two offenses. The State properly suggests that if the two convictions violate the proscription against double jeopardy, the less serious offense of battery should be the conviction and sentence that is vacated.

We conclude, based on the facts and circumstances of this case, that a double jeopardy violation has occurred, see Ramirez v. State, 113 So.3d 105 (Fla. 5th DCA 2013), and that the conviction for battery by strangulation should be affirmed and the lesser offense of battery should be reversed. We, therefore, remand this case to the trial court to vacate the battery conviction and sentence.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, ORFINGER, and BERGER, JJ., concur.

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  • Vaughn Nicholas Pottle v. State, 168 So. 3d 1290 (Fla. 1st DCA 2015)
    …angulation violate the prohibition against double jeopardy. The elements of domestic battery by strangulation subsume the elements of simple battery, and both convictions stemmed from appellant’s single act of choking the victim. See Allen v. State, 146 So. 3d 1262 (Fla. 5th DCA 2014) (concluding that convictions for battery and domestic battery by strangulation based upon one act violated proscription against double jeopardy); see also Harris v. State, 111 So. 3d 922 (Fla. 1st DCA 2013) (reversing conviction…

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