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Barnett v. State

Florida Court of Appeals, Second District

August 14, 2019

TERRENCE BARNETT, Appellant,
v.
STATE OF FLORIDA, Appellee.

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

          Appeal from the Circuit Court for Polk County; Jalal A. Harb, Judge.

          Howard L. Dimmig, II, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.

          Ashley Moody, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.

          BADALAMENTI, JUDGE

         Terrence 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.

         Barnett 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.

         Deputy 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.

         Barnett 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.

         Barnett 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 impermissible.

         Barnett 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)).

         "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." 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.

         Barnett 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 same conduct.[1]

         Next, Barnett relies heavily on the supreme court's decision in Mills v. State, 476 So.2d 172 (Fla. 1985).[2] 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 ...


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