State v. Johnson (1986)

A double jeopardy violation constitutes fundamental error, State v. Johnson, 483 So. 2d 420, 421 (Fla. 1986), which we are required to correct sua sponte if it is apparent on the face of the record, Phelps v. State, 236 So. 3d 1162, 1164 (Fla. 2d DCA 2018).

Id. (citing State v. Johnson, 483 So.2d 420, 423 (Fla.1986)).

State v. Johnson, 483 So.2d 420, 422 (Fla.1986).

Although the defendant failed to raise the issue below, a double jeopardy violation constitutes fundamental error, see State v. Johnson, 483 So.2d 420, 421 (Fla.1986), and a claim of fundamental error may be raised for the first time on direct appeal.

State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Hunsicker v. State, 881 So.2d 1166, 1169 (Fla. 5th DCA 2004), review denied, 894 So.2d 970 (Fla.2005); Rios v. State, 791 So.2d 1208, 1210 (Fla. 5th DCA 2001).

In State v. Johnson, 483 So.2d 420, 421 (Fla.1986), the supreme court noted, "[T]here may be limited instances in which a defendant may be found to have knowingly waived his double jeopardy rights." Where a guilty plea is bargained for, double jeopardy claims as to the conviction and sentence are waived.

This court and others have consistently held that violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal. [2] See State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004); Tannihill v. State, 848 So.2d 442 (Fla. 4th DCA 2003); Haynes v. State, 828 So.2d 457, 458 (Fla. 4th DCA 2002); Rios v. State, 791 So.2d 1208 (Fla. 5th DCA 2001); Ford…

In State v. Johnson, 483 So.2d 420, 421 (Fla.1986), the supreme court noted, "[T]here may be limited instances in which a defendant may be found to have knowingly waived his double jeopardy rights." Where a guilty plea is bargained for, double jeopardy claims as to the conviction and sentence are waived.

In State v. Johnson, 483 So.2d 420, 421 (Fla.1986), the supreme court answered two certified questions: (1) whether a criminal conviction based on placing a defendant twice in jeopardy for the same offense constitutes fundamental error and (2) whether a defendant waives his right to assert double jeopardy if "he fails to raise it before the trial court at the time he is again placed in jeopardy." Id.

“The prohibition against double jeopardy is ‘fundamental.’ ” Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994), citing Benton v. Maryland, 395 U.S. 784, 795-96 , 89 S.Ct. 2056, 2063 , 23 L.Ed.2d 707 (1969). “ ‘[T]he failure to timely raise a double jeopardy claim does not, in and of itself, serve as a waiver of the claim.’ ” Id. citing State v. Johnson, 483 So.2d 420, 423 (Fla.1986).

As this Court concluded in State v. Johnson, 483 So.2d 420, 423 (Fla.1986), "the failure to timely raise a double jeopardy claim does not, in and of itself, serve as a *1159 waiver of the claim." In Johnson , the trial court unconditionally accepted the defendant's nolo contendere plea to several criminal charges, but subsequently vacated the judgment on the basis of information contained in the presentence investigation report.

In holding that a convict appealing denial of a motion filed under Florida Rule of Criminal Procedure 3.850 could raise a double jeopardy claim never previously presented, the court in State v. Johnson, 483 So.2d 420, 421 (Fla.1986) posed the question Does a defendant waive his right to assert double jeopardy when he fails to raise it before the trial court at the time he is again placed in jeopardy?

As this Court concluded in State v. Johnson, 483 So.2d 420, 423 (Fla. 1986), "the failure to timely raise a double jeopardy claim does not, in and of itself, serve as a waiver of the claim." In Johnson , the trial court unconditionally accepted the defendant's nolo contendere plea to several criminal charges, but subsequently vacated the judgment on the basis of information contained in the presentence investigation report.

There is no question either that (a) as a general proposition, a right to double jeopardy protection against multiple adjudications is susceptible to a knowing waiver by the defendant, [1] Ricketts v. Adamson, 483 U.S. 1 , 107 S.Ct. 2680 , 97 L.Ed.2d 1 (1987); State v. Johnson, 483 So.2d 420, 423 (Fla. 1986); Guardado v. State, 562 So.2d 696 (Fla. 3d DCA 1990), review denied, 576 So.2d 287 (Fla. 1990); Rodriguez v. State, 441 So.2d 1129 (Fla. 3d DCA 1983), pet. for review de…

Arnold v. State, 578 So.2d 515, 516 (Fla. 4th DCA 1991) (citing State v. Johnson, 483 So.2d 420, 422 (Fla.1986) (the violation of a constitutional double jeopardy right is fundamen tal error).

State v. Johnson, 483 So.2d 420, 422 (Fla. 1986).

Such a waiver, however, is not supported by the circumstances of this case. 483 So.2d at 422, 423 .

See Plowman v. State, 586 So. 2d 454, 455 (Fla. 2d DCA 1991) (citing State v. Johnson, 483 So. 2d 420, 422 (Fla. 1986)); see also Gardner v. State, 30 So. 3d 629, 630 (Fla. 2d DCA 2010), disapproved of on other grounds by Dunbar v. State, 89 So. 3d 901, 905-07 (Fla. 2012).

See State v. Johnson, 483 So.2d 420, 423 (Fla. 1986) (concluding that the issue of prejudice was not an appropriate consideration in a rule 3.850 challenge to a double jeopardy violation).

See State v. Johnson, 483 So.2d 420, 422-23 (Fla. 1986).

See Johnson v. State, 460 So.2d 954, 958 (Fla. 5th DCA 1984), approved, 483 So.2d 420 (Fla.1986).

State v. Millanes, 180 Ariz. 418 , 885 P.2d 106, 109 (App.1994); see also State v. Johnson, 483 So.2d 420, 422 (Fla.1986) Dixon v. Commonwealth, 263 S.W.3d 583 , 593 n. 50 (Ky.2008); Michael, 420 N.Y.S.2d 371 , 394 N.E.2d at 1136 (''There exist certain narrowly drawn exceptions to the general rule that a timely objection or request is necessary to create a question of law reviewable by this court, for certain principles of law are deemed so fundamental to our criminal justic…

See State v. Johnson, 483 So.2d 420, 422 (Fla.1986) (citing Benton v. Maryland, 395 U.S. 784, 794-96 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969)). .

See State v. Johnson, 483 So.2d 420 (Fla.1986).

See State v. Johnson, 483 So.2d 420, 422 (Fla.1986). .

See State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Johnson v. State, 747 So.2d 1027, 1028 (Fla. 2d DCA 1999); see also Butler v. State, 711 So.2d 1183, 1184 (Fla. 1st DCA 1998) (stating that Butler “did not waive his double jeopardy claim arising from the multiple robbery convictions and sentences by his failure to raise it before the trial court”), approved, 735 So.2d 481 (Fla.1999).

See State v. Johnson, 483 So.2d 420 (Fla.1986).

See, e.g., State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004).

See State v. Johnson, 483 So.2d 420 (Fla.1986).

See State v. Johnson, 483 So.2d 420, 421-423 (Fla.1986).

See State v. Johnson, 483 So.2d 420 (Fla.1986); Ford v. State, 749 So.2d 570 (Fla. 5th DCA 2000).

See State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Rivera v. State, 745 So.2d 343 (Fla. 4th DCA 1999); Austin v. State, 699 So.2d 314 (Fla. 1st DCA 1997); Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996).

See Acosta v. State, 489 So.2d 63 , 63 n. 1 (Fla. 4th DCA 1986)(citing State v. Johnson, 483 So.2d 420, 422 (Fla.1986)).

See State v. Johnson, 483 So.2d 420, 422-23 (Fla.1986)(and cases cited therein).

See State v. Johnson, 483 So.2d 420, 422 (Fla.1986).

See State v. Johnson, 483 So.2d 420, 422-23 (Fla.1986).

See State v. Johnson, 483 So.2d 420 (Fla. 1986) (a criminal conviction which violates the prohibition against double jeopardy constitutes fundamental error); Sanford v. Rubin, 237 So.2d 134 (Fla.1970) (fundamental error may be raised for the first time on appeal).

See also Novaton v. State, 634 So.2d 607 (Fla.1994). [H]olding that a convict appealing denial of a motion filed under Florida Rule of Criminal Procedure 3.850 could raise a double jeopardy claim never previously presented, the court in State v. Johnson, 483 So.2d 420, 421 (Fla.1986) posed the question Does a defendant waive his right to assert double jeopardy when he fails to raise it before the trial court at the time he is again placed in jeopardy?

See State v. Johnson, 483 So.2d 420 (Fla. 1986).

See Lippman, 633 So.2d at 1065 (citing State v. Johnson, 483 So.2d 420 (Fla. 1986)).

See generally Johnson v. State, 460 So.2d 954 (Fla. 5th DCA 1984), aff'd, 483 So.2d 420 (Fla.1986) (violation of double jeopardy rights constitutes fundamental error).

See State v. Johnson, 483 So.2d 420 (Fla. 1986).

See Johnson v. State, 460 So.2d 954 (Fla. 5th DCA 1984), approved, 483 So.2d 420 (Fla. 1986). [5] The actions of defense counsel in "consenting" to the State's motion to withdraw the defendant's plea to accessory with knowledge that the State intended to file a more serious criminal offense constitutes a prima facie case of ineffective assistance of counsel.

See Johnson v. State, 483 So.2d 420 (Fla.1986).

Although the court ruled for Johnson, it twice stated in the opinion, "We caution that there may be limited instances in which a defendant may be found to have knowingly waived his double jeopardy rights." Id. at 423 , citing United States v. Pratt, 657 F.2d 218 (8th Cir.1981) and United States v. Herzog, 644 F.2d 713 (8th Cir.), cert. denied, 451 U.S. 1018 , 101 S.Ct. 3008 , 69 L.Ed.2d 390 (1981); see also 483 So.2d at 421 .

See p. 878 n. 2, supra. Several days after our decision was made public, the Florida Supreme Court held that "the failure to timely raise a double jeopardy claim does not, in and of itself, serve as a waiver of the claim." State v. Johnson, 483 So.2d 420, 423 (Fla. 1986).