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Tambriz-Ramirez v. State

Supreme Court of Florida

July 12, 2018

DIEGO TAMBRIZ-RAMIREZ, Petitioner,
v.
STATE OF FLORIDA, Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

          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)

          Rocco J. Carbone, III, Law Offices of Rocco J. Carbone, III, PLLC, St. Augustine, Florida, for Petitioner

          Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Celia Terenzio, Bureau Chief, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, Florida, for Respondent

          CANADY, C.J.

         In this 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 this opinion.

         I. BACKGROUND

         The 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 charges.
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.

         On 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.

         The 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 jeopardy principles.")).

         In 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 firearm").
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 analysis.
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 or battery.

Id. at 924-25 (second alteration in original).

         Based on the certified conflict, Tambriz-Ramirez petitioned this Court to invoke its discretionary jurisdiction and we granted his petition. This review follows.

         II. ANALYSIS

         The 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).

         Where 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 ...

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