MARCOS A. RIVERA, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Gail A. Adams,
S. Purdy, Public Defender, and Andrew Mich, Assistant Public
Defender, Daytona Beach, for Appellant.
Moody, Attorney General, Tallahassee, and Kristen L.
Davenport, Assistant Attorney General, Daytona Beach, for
A. Rivera ("Appellant") appeals his convictions for
aggravated battery and battery, arguing they violate double
jeopardy. Both crimes took place in a single criminal episode
or transaction with no meaningful temporal break, involving a
single victim at a single location, and the lesser offense of
battery is subsumed by the greater offense of aggravated
battery. Applying section 775.021(4)(b), Florida Statutes
(2017), the statutory codification of the
Blockburger test, leads to the conclusion that the
dual convictions violate the prohibition against double
jeopardy. Accordingly, we reverse Appellant's conviction
for battery and remand for further proceedings.
altercation involving Appellant and Boris Rojas, the victim,
occurred at Orlando Speed World. Following a qualifying lap,
Rojas pulled off the track, stopped, and was beginning to
exit his race car when Appellant grabbed Rojas by the helmet
and tried to pull him the rest of the way out of his car.
Rojas exited his car and Appellant began striking Rojas, but
Rojas was able to push him away. Appellant paused his attack
only long enough to put his knife to Rojas' throat while
threatening to "put him to sleep." Rojas again
pushed Appellant away and immediately afterwards, Appellant
resumed striking Rojas.
Rojas and an eyewitness believed that Appellant was simply
punching Rojas with his fist; however, it soon became clear
that Appellant was holding a small knife in his hand. Each
time Appellant punched Rojas, he also stabbed him. Rojas
suffered six stab wounds. Rojas and an eyewitness testified
that Appellant was the sole aggressor, and both confirmed
that Appellant had a knife. The jury obviously did not
believe Appellant's claim that he was unarmed and that
Rojas was the aggressor. The jury found Appellant guilty of
both aggravated battery and battery. Appellant was
adjudicated guilty and sentenced to fifteen years on the
aggravated battery conviction and to one year on the battery
conviction with jail credit of 491 days allotted to both
did not raise the issue of double jeopardy below and now
seeks review based upon the concept of fundamental error,
which is permissible under the circumstances of this case.
See Rosado v. State, 129 So.3d 1104, 1107 n.1 (Fla.
5th DCA 2013) (noting that because a double jeopardy
violation constitutes fundamental error it is cognizable on
appeal even if not raised below). Whether separate
convictions violate double jeopardy is a question of law and
is reviewed de novo. E.g., Capron v. State,
948 So.2d 954, 957 (Fla. 5th DCA 2007).
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." Roughton
v. State, 185 So.3d 1207, 1209 (Fla. 2016). "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." Id. (citing
Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009)).
the Florida Legislature provides clear direction as to
whether a person may be separately convicted or sentenced for
offenses arising from the same criminal transaction, the
specific legislative directive controls." Taylor v.
State, 267 So.3d 1088, 1090 (Fla. 5th DCA 2019) (citing
State v. Meshell, 2 So.3d 132, 136 (Fla. 2009)).
There is no contention here by the State, nor do we find,
that the Legislature intended to permit multiple convictions
and sentences for aggravated battery and battery committed against
one victim within the same criminal transaction or episode.
"[A]bsent an explicit statement of legislative intent to
authorize separate punishments for two crimes, application of
the Blockburger 'same-elements' test,"
codified in section 775.021(4), Florida Statutes (2017),
"is the sole method of determining whether multiple
punishments are double-jeopardy violations." Gaber
v. State, 684 So.2d 189, 192 (Fla. 1996) (footnote
omitted) (citing State v. Maxwell, 682 So.2d 83, 84
analyzing [a] double jeopardy claim, [a reviewing court] must
first determine whether the [offenses] were part of a
separate episode or transaction. If so, double jeopardy is
not an issue." Miles v. State, 94 So.3d 662,
663 (Fla. 5th DCA 2012). While there is no exact definition
of what constitutes a single criminal transaction, "[t]o
determine whether an offense occurred during the same
criminal transaction, courts examine 'whether there are
multiple victims, whether the offenses occurred in multiple
locations, and whether there has been a "temporal
break" between the offenses.'" Id.
(quoting Staley v. State, 829 So.2d 400, 401 (Fla.
2d DCA 2002)). Here there was a single altercation, at a
single location, involving a single victim. There was no
meaningful temporal break. Appellant began his attack on
Rojas by attempting to pull Rojas from his car and then
stabbing him in his side. When Rojas pushed him away,
Appellant paused his attack only long enough to put his knife
to Rojas' throat and threaten to kill him. After Rojas
pushed him away again, Appellant immediately resumed stabbing
Rojas. The entire attack lasted only a minute or two. The
fact that Rojas was able to push Appellant away twice during
the attack does not transform it into multiple criminal
episodes. This was a single, prolonged attack.
determine whether convictions for both battery and aggravated
battery arising from the same criminal transaction violate
double jeopardy, i.e., would constitute punishment for the
same offense, section 775.021(4)(b), Florida
Statutes-codifying the Blockburger
test-is applicable. That section states that:
The intent of the Legislature is to convict and sentence for
each criminal offense committed in the course of one criminal
episode or transaction and not to allow the principle of
lenity as set forth in subsection (1) to determine