FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Polk County; Jalal A. Harb, Judge.
L. Dimmig, II, Public Defender, and Terrence E. Kehoe,
Special Assistant Public Defender, Bartow, for Appellant.
Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal,
Assistant Attorney General, Tampa, for Appellee.
Barnett appeals from his jury convictions and sentences for
first-degree felony murder with the predicate felony of
resisting an officer with violence, aggravated battery on a
law enforcement officer, and resisting an officer with
violence. Because we agree with Barnett's argument that
his convictions for first-degree felony murder and aggravated
battery on a law enforcement officer violate double jeopardy
under the merger doctrine, we reverse in part and remand with
instructions for the trial court to vacate the aggravated
battery conviction and corresponding sentence. We further
remand for the entry of corrected sentencing documents. We
affirm Barnett's remaining convictions and sentences in
all other respects.
was residing in the isolation unit of the Polk County Jail
while serving his sentence for an unrelated offense. He
subsequently demanded to be transferred out of the isolation
unit. When Barnett was informed that he would not be
transferred, he swallowed approximately eight pills in the
presence of deputies and refused to tell them what he
ingested. After consultation with a nurse, the deputies
decided to move Barnett to another part of the jail to place
him on suicide watch. The victim, a detention deputy named
Ronnie Brown, was asked to assist with this move.
Brown entered Barnett's cell and attempted to grab
Brown's hand to restrain him. Barnett then pushed Deputy
Brown, causing his back to hit a wall of the cell. Deputy
Brown immediately slid to the floor and yelled about the pain
to his back. Deputy Brown was hospitalized for his back
injury. His doctors concluded that he had a fractured T12
vertebra and operated on him to reduce the pain.
Approximately one week after the incident, Deputy Brown died
in his hospital bed. The State's medical examiner
concluded that the victim died from a blood clot that formed
as a result of his back injury.
was subsequently charged with three offenses: (1)
first-degree felony murder with the predicate felony of
resisting an officer with violence, (2) aggravated battery on
a law enforcement officer, and (3) resisting an officer with
violence. Following a jury trial, Barnett was convicted as
charged. He was sentenced to life in prison on the
first-degree felony murder count, thirty years'
imprisonment on the aggravated battery count, and five
years' imprisonment on the resisting count. The court
ordered the sentences to run concurrently with each other but
consecutively to the unrelated sentence he was serving at the
time of sentencing.
argues on appeal that his convictions for both first-degree
felony murder (resisting an officer with violence) and
aggravated battery on a law enforcement officer violate
double jeopardy under the merger doctrine because the
convictions were based on the same homicidal act-pushing the
victim against the wall. To be clear, Barnett does not
challenge his convictions for felony murder or his separate
conviction for the predicate felony of resisting an officer
with violence. See § 784.02, Fla. Stat. (2009).
Instead, he argues that his conviction for aggravated battery
of a law enforcement officer, a felony not
enumerated in section 782.04, arising out of the same
criminal act as his felony murder conviction, is
raised this argument at the time of his sentencing hearing.
The trial court, however, rejected his argument and sentenced
Barnett on all three of his convictions. "Determining
whether double jeopardy is violated based on undisputed facts
is a purely legal determination, so the standard of review is
de novo." Fleming v. State, 227 So.3d 1254,
1256 (Fla. 2d DCA 2017) (quoting Binns v. State, 979
So.2d 439, 441 (Fla. 4th DCA 2008)).
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." McCullough v. State, 230 So.3d 586,
590 (Fla. 2d DCA 2017) (quoting Roughton v. State,
185 So.3d 1207, 1209 (Fla. 2016)). Normally, when conducting
a double jeopardy analysis, courts employ the
Blockburger "same elements" test to
determine whether each offense has an element the other does
not. Williams v. State, 90 So.3d 931, 934 (Fla. 1st
DCA 2012); see also Blockburger v. United States,
284 U.S. 299, 304 (1932). However, the principle of merger,
prohibiting multiple punishments for a single killing,
"is an exception to the standard double jeopardy
analysis." Williams, 90 So.3d at 934.
begins his argument with the proposition that in a murder
prosecution, the trial court may not instruct the jury on
nonhomicide lesser included offenses because "where a
homicide has taken place, the proper jury instructions are
restricted to all degrees of murder, manslaughter, and
justifiable and excusable homicide." Martin v.
State, 342 So.2d 501, 503 (Fla. 1977), superseded on
other grounds by, Fla. R. Crim. P. 3.490; see also
Daugherty v. State, 211 So.3d 29, 33 n.2 (Fla. 2017). In
Martin, the supreme court explained that when the
jury finds that an unlawful homicide has occurred, it must
next determine the degree of murder or manslaughter and that
"[w]hether an aggravated assault occurred as part of a
crime that culminated in the death of the victim is patently
immaterial." Martin, 342 So.2d at 503. Thus,
while Martin is not a double jeopardy case, Barnett
argues its reasoning is applicable because it supports his
argument that the offense of aggravated battery should merge
with a homicide offense where the offenses are based on the
Barnett relies heavily on the supreme court's decision in
Mills v. State, 476 So.2d 172 (Fla.
1985). In Mills, the defendant shot the
victim while burglarizing the victim's home. He was
convicted of first-degree felony murder (predicate of
burglary), burglary, and aggravated battery. Id. at
174. He challenged his convictions for first-degree murder
and aggravated battery on double jeopardy grounds, arguing
that his conviction of aggravated battery was invalid as a
lesser included offense of first-degree murder. Id.
at 177. The supreme court rejected this argument, explaining
that "each [offense] contains elements which the other
does not" and thus aggravated battery was not a lesser
included offense of felony murder. Id. However, the
court went on to hold that it did "not believe it proper
to convict a person for aggravated battery and simultaneously
for homicide as a result ...