JERRY RICHARDSON VS STATE OF FLORIDA

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2022-0617 _____________________________

JERRY RICHARDSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Escambia County. John F. Simon, Jr., Judge.

June 19, 2024

RAY, J.

Jerry Richardson challenges his convictions for both detainee battery and felony battery based on a prior conviction. He argues that his sentences on both convictions are two punishments for the same offense, in violation of his constitutional protection from double jeopardy. We agree.

While incarcerated at the county jail, Richardson punched another inmate in the face and fractured his jaw. He was charged with one count of detainee battery under section 784.082(3), Florida Statutes, and one count of felony battery either by causing great bodily harm under section 784.041(1)(b), Florida Statutes, or, alternatively, based on a prior battery conviction under section 784.03(2), Florida Statutes. The jury convicted him of detainee

Double jeopardy claims based on undisputed facts present purely legal questions subject to de novo review. See State v. Florida, 894 So. 2d 941, 945 (Fla. 2005). Despite Richardson’s failure to raise this issue in the trial court, a double jeopardy violation is fundamental error that may be addressed for the first time on appeal. See Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994) (determining that a double-jeopardy claim was not procedurally barred from being raised in post-conviction motion because “[t]he prohibition against double jeopardy is ‘fundamental’” (quoting Benton v. Maryland, 395 U.S. 784, 795–96 (1969))); State v. Johnson, 483 So. 2d 420, 422–23 (Fla. 1986) (determining that a double-jeopardy claim is fundamental and was not waived by a guilty plea or the failure to raise it before trial); Shipman v. State, 171 So. 3d 199, 200 (Fla. 1st DCA 2015).

Both the United States and Florida Constitutions guarantee against being placed in jeopardy twice for the same offense. See U.S. Const. amend. V; Art. I, § 9, Fla. Const.; Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002) (“The scope of the Double Jeopardy Clause is the same in both the federal and Florida Constitutions.”). Since it is the role of the Legislature to define crimes and fix punishment, the question of what punishments are constitutionally permissible is one of legislative intent. See Missouri v. Hunter, 459 U.S. 359, 366 (1983) (“[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”); see also Ohio v. Johnson, 467 U.S. 493, 499 (1984) (explaining that the “protection against cumulative punishments [] is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature” and that the legislature has “the substantive power to prescribe crimes and determine . . . whether punishments are ‘multiple’”); Trappman v. State, 49 Fla. L. Weekly S34 (Fla. Feb. 8, 2024) (noting that even

1. Offenses which require identical elements of

proof.*

2. Offenses which are degrees of the same offense as

provided by statute.

3. Offenses which are lesser offenses the statutory

elements of which are subsumed by the greater offense.

§ 775.021(4)(b), Fla. Stat. See Trappman, 49 Fla. L. Weekly S34 (Fla. Feb. 8, 2024) (“In Florida, the legislature has acted to provide very specific guidance concerning the general rules for determining when separate punishments are properly applied for separate offenses that are committed during one criminal transaction or episode.”); State v. Smith, 547 So. 2d 613, 616 (Fla. 1989) (explaining that “[s]ubsection 775.021(4)(b) is the specific, clear, and precise statement of legislative intent” that serves “as the controlling polestar” that guides double-jeopardy analysis); State v. Anderson, 695 So. 2d 309, 311 (Fla. 1997) (“Legislative intent [clearly reflected in the Florida Statutes] is the polestar that guides our analysis in double jeopardy issues. . . .”). Here, the undisputed facts show that Richardson’s convictions arose from a single criminal episode. He threw a single punch, hitting one victim in the face. He argues that the second statutory exception applies because both detainee battery and felony battery based on a prior conviction are degree variants of the same offense, simple battery.

* Section 775.021(4)(b)1. codifies the “same elements” test established in Blockburger v. United States, 284 U.S. 299 (1932). See State v. Maxwell, 682 So. 2d 83, 84 (Fla. 1996).

For these reasons, we affirm Richardson’s conviction for detainee battery, but we vacate his conviction and sentence for felony battery based on a prior battery conviction and remand for resentencing on the detainee battery count. Cf. State v. Shelley, 176 So. 3d 914, 919 (Fla. 2015) (approving vacatur of lesser offense where “dual convictions . . . based upon the same conduct impermissibly place[d the defendant] in double jeopardy”); Pizzo v. State, 945 So. 2d 1203, 1206, 1207 (Fla. 2006) (concluding that the district court of appeal “should have vacated” the “lesser offenses” as a remedy for a double-jeopardy violation, because “[w]hen an appellate court determines that dual convictions are impermissible, [it] should reverse the lesser offense conviction and affirm the greater”); State v. Barton, 523 So. 2d 152, 153 (Fla. 1988) (holding that when there are two convictions for the same offense, “the conviction of the lesser crime should be set aside”); see also Whitfield v. State, 202 So. 3d 456, 459 (Fla. 5th DCA 2016) (holding that when both counts involve felonies of the same degree,

TANENBAUM, J., concurs; KELSEY, J., dissents with opinion.

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Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

KELSEY, J., dissenting.

To hasten disposition of this case, I will not belabor my dissent, which after all is of no real legal effect. Simply put, the majority fails to give proper legal effect to the separate elements of Appellant’s two crimes and the Florida Legislature’s intent in codifying them in two separate statutes. The Legislature did not make them degree variants, reclassifications, or enhancements. To the contrary, detainee battery under section 784.082(3) addresses detainee safety and institutional order, while section 784.03(2) addresses a specific separate problem: repeat offending by batterers. While the latter statute punishing repeated batteries is an enhancement of the crime of battery itself, it does not follow that it is an enhancement of a completely separate crime, detainee battery. Neither crime is a lesser-included offense of the other, and simple battery is not a lesser-included offense of either. Appellant’s sentences comport with the respective statutes violated, and are valid under governing law. See Blockburger v. United States, 284 U.S. 299, 304 (1932); Valdes v. State,³ So. 3d 1067, 1076–77 (Fla. 2009); Stephens v. State, 331 So. 3d 1241, 1253 (Fla. 1st DCA 2022). We should affirm.

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Ashley Moody, Attorney General, and Zachary Lawton, Assistant Attorney General, Tallahassee, for Appellee.