JAMES RICHARD BURNETTE, III
v.
STATE OF FLORIDA

Fla. 5th DCA | 2020-07-02
No. 19-1874
Craig, J., Cohen, J., Lambert, J., Harris, J.
Florida District Court of Appeal, Fifth District (2020)

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Holding

A criminal defendant who chooses severance of charges cannot successfully argue that prosecution on a second charge offends the Double Jeopardy Clause of the Fifth Amendment.

Headnotes

[1] A criminal defendant who consents to severance of charges may not subsequently challenge prosecution on a severed charge as violating the Double Jeopardy Clause of the Fi…

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Key Quotes

“The defendant's consent to the severance (including a second trial on the severed count) obviates any concern or claim that the second trial violates the Double Jeopardy Clause”

Court's application of Currier v. Virginia to the defendant's severance consent
Facts & Procedural History

Appellant Burnette appealed a circuit court decision regarding charges that were severed for separate trials. Burnette challenged the second trial on …

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Opinion of the Court
Harris

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JAMES RICHARD BURNETTE, III,

Appellant,

v. Case No. 5D19-1874

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed July2, 2020

3.850 Appeal from the Circuit Court for Volusia County, Dennis Craig, Judge.

James S. Purdy, Public Defender, and Ali L. Hansen, Assistant Public Defender, Daytona Beach, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

AFFIRMED. See Currier v. Virginia, 138 S. Ct. 2144, 2148–50 (2018) (holding that criminal defendant who chooses severance of charges cannot successfully argue that prosecution on second charge offends Double Jeopardy Clause of Fifth Amendment to United States Constitution); Morris v. State, 252 So. 3d 383, 385–86 (Fla. 3d DCA 2018)

COHEN, LAMBERT, and HARRIS, JJ., concur.

Footnotes
2 (concluding that “[t]he analysis in Currier holds that the defendant’s consent to the severance (including a second trial on the severed count) obviates any concern or claim that the second trial violates the Double Jeopardy Clause)”; see also Dunbar v. State, 89 So. 3d 901, 904 n.2 (Fla. 2012) (“The scope of the Double Jeopardy Clause is the same in both the federal constitution and the Florida Constitution.” (quoting Hall v. State, 823 So. 2d 757, 761 (Fla. 2002))).

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