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.
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 Barnetts
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 Barnetts 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.
Brown entered Barnetts cell and attempted to grab Browns
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 States 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.
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. Barnett contends 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. See § 782.04, Fla.
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 legislatures 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 alsoBlockburger v. United
States,284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306
(1932). However, the ...