Marcos A. RIVERA, Appellant,
STATE of Florida, Appellee.
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 Appellants 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 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 Appellants 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 sentences.
Appellant 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).
"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." 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)).
"When 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 (Fla. 1996)).
"In 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 ...