FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
Application for Review of the Decision of the District Court
of Appeal - Certified Direct Conflict of Decisions Fourth
District - Case No. 4D15-2957 (Martin County)
J. Carbone, III, Law Offices of Rocco J. Carbone, III, PLLC,
St. Augustine, Florida, for Petitioner
Jo Bondi, Attorney General, Tallahassee, Florida, Celia
Terenzio, Bureau Chief, and Mark J. Hamel, Assistant Attorney
General, West Palm Beach, Florida, for Respondent
case we consider whether convictions for aggravated assault,
attempted sexual battery, and burglary with an assault or
battery, which arose during a single criminal episode,
violate the prohibition against double jeopardy. We have for
review Tambriz-Ramirez v. State, 213 So.3d 920,
923-25 (Fla. 4th DCA 2017), in which the Fourth District
Court of Appeal held that because burglary with an assault or
battery does not necessarily include an aggravated assault or
attempted sexual battery, Tambriz-Ramirez's convictions
do not violate the prohibition against double jeopardy. The
Fourth District certified conflict with Dykes v.
State, 200 So.3d 162 (Fla. 5th DCA 2016), Hankins v.
State, 164 So.3d 738 (Fla. 5th DCA 2015), Smith v.
State, 154 So.3d 523 (Fla. 1st DCA 2015), McGhee v.
State, 133 So.3d 1137 (Fla. 5th DCA 2014), Green v.
State, 120 So.3d 1276 (Fla. 1st DCA 2013), Estremera
v. State, 107 So.3d 511 (Fla. 5th DCA 2013), White
v. State, 753 So.2d 668 (Fla. 1st DCA 2000), and
Baldwin v. State, 790 So.2d 434 (Fla. 1st DCA 2000).
We have jurisdiction. See art. V, § 3(b)(4),
Fla. Const. For the reasons we explain, we approve the Fourth
District's decision in Tambriz-Ramirez and
disapprove the conflicting decisions to the extent that they
conflict with this opinion. We also disapprove the decision
of the Fifth District in Farrier v. State, 145 So.3d
199 (Fla. 5th DCA 2014), to the extent that it conflicts with
facts of the case as set forth in the Fourth District's
opinion below are as follows:
[In 2010, a]rmed with a knife and using a shirt as a mask,
appellant broke into the victim's home at night and
attempted to sexually batter her. The victim testified that
during the attack, appellant put the knife to her face and
neck. The victim fought off the attacker and, after pulling
off the mask, recognized appellant, whom she knew. Appellant
ultimately confessed his guilt to police and sent letters to
the victim before trial, apologizing and asking her to drop
The State charged appellant as follows: Count 1, Burglary of
a Dwelling with an Assault or Battery While Armed and Masked;
Count 2, Aggravated Assault with a Deadly Weapon While
Masked; and Count 3, Attempted Sexual Battery-Person 12 Years
of Age or Older-Using Great Force or a Deadly Weapon.
The jury convicted appellant as charged on all counts and in
a special interrogatory on the verdict form for Count 1 found
that during the commission of the burglary he was armed or
became armed with "a deadly weapon." The court
sentenced him to life in prison for the burglary, a
consecutive 15 years in prison for the aggravated assault,
and a consecutive 30 years in prison for the attempted sexual
battery. Following this Court's remand on direct appeal,
appellant was resentenced to 15 years in prison for the
attempted sexual battery. See Tambriz Ramirez[ v.
State], 112 So.3d [767, ]768.
Appellant filed a timely amended motion for postconviction
relief under Florida Rule of Criminal Procedure 3.850 raising
various issues, including a claim that his trial attorney was
ineffective in failing to raise a double jeopardy violation.
The trial court held an evidentiary hearing and entered an
order denying all of appellant's claims. As to the double
jeopardy issue, the trial court concluded that the outcome of
the proceedings would not have differed because appellant
received a life sentence.
Tambriz-Ramirez, 213 So.3d at 921.
appeal from the denial of his motion for postconviction
relief, Tambriz-Ramirez argued that the trial court erred in
concluding that no prejudice occurred in the alleged double
jeopardy violation and that Count 2, aggravated assault, and
Count 3, attempted sexual battery, were subsumed within Count
1, burglary with an assault or battery, and therefore
violated the prohibition against double jeopardy.
Id. The district court agreed that the trial court
erred in concluding that Tambriz-Ramirez was not
"prejudiced" by the alleged double jeopardy
violation but nonetheless affirmed the denial of relief,
concluding that because neither aggravated assault nor
attempted sexual battery is subsumed within the offense of
burglary with an assault or battery, Tambriz-Ramirez's
convictions for separate offenses arising from this same
criminal episode did not violate double jeopardy.
Id. at 922.
district court explained that because burglary with an
assault or battery does not necessarily include an aggravated
assault, aggravated assault is not subsumed within a burglary
with an assault or battery offense. Id. at 923.
"Simply stated, a defendant can commit a burglary with
an assault or battery without also committing an
aggravated assault." Id. For analogous
reasons, the district court also rejected
Tambriz-Ramirez's claim that his attempted sexual battery
conviction is subsumed within his burglary with an assault or
battery conviction. Id. at 925 (citing State v.
Nardi, 779 So.2d 596, 597 (Fla. 4th DCA 2001)
("[T]he offenses of attempted sexual battery and
burglary of a dwelling with battery do not violate double
certifying conflict with decisions of the First and Fifth
Districts, the Fourth District explained:
[S]ome decisions of the First and Fifth District Courts of
Appeal have held that convictions for burglary with an
assault and aggravated assault violate double
jeopardy. In reaching this conclusion, these courts may have
relied on the fact the defendant was charged and convicted of
using or being armed with a firearm as to both the
burglary and aggravated assault offenses. For example, in
Baldwin v. State, 790 So.2d 434, 435 (Fla. 1st DCA
2000), the First District held:
Because all of the elements of the crime of aggravated
assault with a firearm are contained within the crime of
burglary with assault while armed with a firearm,
Baldwin's dual convictions are in violation of the
prohibition against double jeopardy.
Id. at 435; see also Smith v. State, 154
So.3d 523, 524 (Fla. 1st DCA 2015) (concluding that
aggravated assault convictions were subsumed within a
conviction for armed burglary with assault); McGhee v.
State, 133 So.3d 1137, 1138 (Fla. 5th DCA 2014)
(reversing "the conviction for aggravated assault with a
firearm because it is subsumed into the greater offense of
burglary of a dwelling with an assault or battery while armed
with a firearm"); Green v. State, 120 So.3d
1276, 1278 (Fla. 1st DCA 2013) (same); Estremera v.
State, 107 So.3d 511 (Fla. 5th DCA 2013) (same);
White v. State, 753 So.2d 668, 669 (Fla. 1st DCA
2000) (same); cf. Dykes v. State, 200 So.3d 162, 163
(Fla. 5th DCA 2016) (remanding a rule 3.850 claim for the
trial court to determine "if double jeopardy bars
[defendant]'s convictions for aggravated battery with a
firearm and aggravated assault with a firearm because they
were subsumed into the greater offense of burglary of a
dwelling with an assault or battery with a firearm");
Hankins v. State, 164 So.3d 738, 738 (Fla. 5th DCA
2015) (granting relief where the State conceded that
"convictions for aggravated battery with a firearm and
aggravated assault with a firearm violate double jeopardy
because they were subsumed into the greater offense of
burglary of a dwelling with an assault or battery with a
These holdings cannot be reconciled with the requirement that
the [double jeopardy] analysis be conducted "without
regard to the accusatory pleading or the proof adduced at
trial." § 775.021(4)(a) Fla. Stat. (2009)
(emphasis [added]). These cases seem to improperly focus on
the fact that the burglary and assault offenses were charged
and proven with a firearm. Much of the confusion may
arise because the reviewing courts looked at the title of the
charges, the specific allegations in the charging document,
or the jury's findings in its verdict, instead of looking
exclusively to the statutory elements of the offenses. In any
event, as is now clear, courts should not look beyond the
statutory elements when conducting a double jeopardy
Accordingly, we certify conflict with the decisions of the
First and Fifth District Courts of Appeal in Dykes,
Hankins, McGhee, Green,
Estremera, Baldwin, Smith and
White, which hold that an aggravated
assault offense is subsumed within a burglary with an assault
Id. at 924-25 (second alteration in original).
on the certified conflict, Tambriz-Ramirez petitioned this
Court to invoke its discretionary jurisdiction and we granted
his petition. This review follows.
double jeopardy clauses, contained in the Fifth Amendment to
the United States Constitution and article I, section 9 of
the Florida Constitution, prohibit the imposition of multiple
punishments for the same criminal offense. U.S. Const. amend.
V; art. I, § 9, Fla. Const. But the double jeopardy
clauses do not prohibit multiple punishments for different
offenses arising out of the same criminal transaction or
episode if the Legislature intended to authorize separate
punishments. Valdes v. State, 3 So.3d 1067, 1069
(Fla. 2009). "The Double Jeopardy Clause 'presents
no substantive limitation on the legislature's power to
prescribe multiple punishments,' but rather, 'seeks
only to prevent courts either from allowing multiple
prosecutions or from imposing multiple punishments for a
single, legislatively defined offense.'" Borges
v. State, 415 So.2d 1265, 1267 (Fla. 1982) (quoting
State v. Hegstrom, 401 So.2d 1343, 1345 (Fla.
1981)). Double jeopardy claims based on undisputed facts
present questions of law and are subject to de novo review.
State v. Drawdy, 136 So.3d 1209, 1213 (Fla. 2014).
multiple criminal offenses occur in the course of a single
criminal episode or transaction, courts employ the test set
forth by the United States Supreme Court in Blockburger
v. United States, 284 U.S. 299 (1932), which is codified
at section 775.021(4)(a), Florida Statutes, to determine
whether receiving separate punishments for each offense
violates double jeopardy. Id. As codified in
Florida, that test provides:
(4)(a) Whoever, in the course of one criminal transaction or
episode, commits an act or acts which constitute one or more
separate criminal offenses, upon conviction and adjudication
of guilt, shall be sentenced separately for each criminal
offense; and the sentencing judge may order the sentences to
be served concurrently or consecutively. For the purposes of
this subsection, offenses are separate if each offense
requires proof of an ...