double jeopardy clause in Florida

2019However, the Florida Supreme Court explained that there is an exception to the general rule when a defendant can demonstrate: "(a) the plea is a general plea as -3- distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation." Id. (quoting Novaton v. State, 634 So. 2d 607, 609 (Fla. 1994)).

2018See Novaton v. State , 634 So.2d 607 , 609 (Fla. 1994) (holding that a double-jeopardy claim is waived when the defendant enters into a negotiated plea agreement).

2026“A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.” Dunbar v. State, 89 So. 3d 901 , 904 n.3 (Fla. 2012) (quoting Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006)).

2024See Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006) (“A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.”).

2024See Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994) (determining that a double-jeopardy claim was not procedurally barred from being raised in post-conviction motion because “[t]he prohibition against double jeopardy is ‘fundamental’” (quoting Benton v. Maryland, 395 U.S. 784 , 795–96 (1969))); State v. Johnson, 483 So. 2d 420 , 422–23 (Fla. 1986) (determining that a double-jeopardy claim is fundamental and was not waived by a guilty plea or the failure to raise it before trial); Shipman v. State, 171 So. 3d 199, 200 (Fla. 1st DCA 2015).

2019A 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).

2026“By comparison, -9- we have held that a sentence that has been unconstitutionally enhanced in violation of the double jeopardy clause is illegal and, therefore, may be corrected under rule 3.800(a).” Id. at 992 (citing Hopping v. State, 708 So. 2d 263, 265 (Fla. 1998)).

2026“By comparison, -9- we have held that a sentence that has been unconstitutionally enhanced in violation of the double jeopardy clause is illegal and, therefore, may be corrected under rule 3.800(a).” Id. at 992 (citing Hopping v. State, 708 So. 2d 263, 265 (Fla. 1998)).

2020The Second District concluded that this Court’s precedents made clear that the single homicide rule “applies even in circumstances where the double jeopardy analysis set forth in -2- Blockburger v. United States, 284 U.S. 299, 304 (1932), may not grant relief.” Marsh, 253 So. 3d at 676-77 .

2018Section 775.021(4)(a) is a codification of the "same elements" test enunciated in Blockburger v. United States , 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932), to determine whether a double jeopardy violation occurred.

2023See also Morgan v. State, 888 So. 2d 128, 129 (Fla. 3d DCA 2004) (acknowledging “a motion to correct illegal sentence is an appropriate procedure for challenging a sentence, but not a conviction”); Coughlin v. State, 932 So. 2d 1224, 1225 (Fla. 2d DCA 2006) (holding “a traditional double jeopardy challenge attacks both the conviction and, by default, the sentence, while rule 3.800(a) is limited to claims that the sentence itself is illegal, without regard to the underlying conviction”).

2023Weekly D1823 , 2022 WL 3903532 (Fla. 3d DCA Aug. 31, 2022); Planas v. State, 271 So. 3d 76 (Fla. 3d DCA 2019); Lopez v. State, 2 So. 3d 1057, 1059 (Fla. 3d DCA 2009); Morgan v. State, 888 So. 2d 128, 129 (Fla. 3d DCA 2004) (acknowledging “a motion to correct illegal sentence is an appropriate procedure for challenging a sentence, but not a conviction”); Coughlin v. State, 932 So. 2d 1224, 1226 (Fla. 2d DCA 2006) (holding that “a traditional double jeopardy challenge attacks both the conviction and, by default, the sentence, while rule 3.800(a) is limited to claims that a sentence itself is ill

2019Id. at 1141–42 ("We find no legal basis to deny a double jeopardy challenge based on uncharged conduct simply because it could have been charged.").

2018Shelley v. State , 134 So.3d 1138 , 1141-42 (Fla. 2d DCA 2014) (emphasis added), approved , 176 So.3d 914 (Fla. 2015) ; see also Stapler v. State , 190 So.3d 162 , 164-65 (Fla. 5th DCA 2016) ("While we acknowledge that the State can convict a defendant on multiple counts of solicitation where multiple counts are alleged and established, we join the Second District Court of Appeal in declining to deny a double-jeopardy claim 'based on uncharged conduct simply because it could have been charged.' ") (footnote omitted); Pamblanco v. State , 199 So.3d 507 (Fla. 5th DCA 2016) (finding a double jeop

2024See Lippman v. State, 633 So. 2d 1061, 1064 (Fla. 1994) (determining that a double-jeopardy claim was not procedurally barred from being raised in post-conviction motion because “[t]he prohibition against double jeopardy is ‘fundamental’” (quoting Benton v. Maryland, 395 U.S. 784 , 795–96 (1969))); State v. Johnson, 483 So. 2d 420 , 422–23 (Fla. 1986) (determining that a double-jeopardy claim is fundamental and was not waived by a guilty plea or the failure to raise it before trial); Shipman v. State, 171 So. 3d 199, 200 (Fla. 1st DCA 2015).

2005See Lippman v. State, 633 So.2d 1061, 1064-65 (Fla.1994) (holding that a double jeopardy claim raises a question of fundamental error which is not procedurally barred when raised initially in rule 3.850 proceedings).

2026“A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.” Dunbar v. State, 89 So. 3d 901 , 904 n.3 (Fla. 2012) (quoting Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006)).

2024See Dunbar v. State, 89 So. 3d 901, 905 (Fla. 2012) (“[T]he later imposition of more onerous terms ‘violates the double jeopardy clause only when it disrupts the defendant’s legitimate expectations of finality.’” (quoting United States v. Young, 953 F.2d 1288 , 1291 n.3 (11th Cir. 1992))); see also Goene v. State, 577 So. 2d 1306, 1309 (Fla. 1991) (noting that the defendant “had no legitimate expectation of finality in the sentence originally imposed and there is no double jeopardy prohibition against reimposition of a correct sentence.”).

2024See art. 1, § 9, Fla. Const. (providing that “[n]o person shall be . . . twice put in jeopardy for the same offense”); see also Trappman v. State, 384 So. 3d 742 , 746-47 (Fla. 2024) (explaining that the double jeopardy clause in the Florida Constitution “was intended to mirror [the] intention of those who framed the double jeopardy clause of the fifth amendment” (alteration in original) (quoting Carawan v. State, 515 So. 2d 161, 164 (Fla. 1987))); Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009) (“The constitutional protection against double jeopardy is found in both article I, section 9, of

2017"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." Id. (quoting Borges v. State, 415 So. 2d 1265, 1267 (Fla. 1982)); accord Valdes v. State, 3 So. 3d 1067, 1076 (Fla. 2009) ("[T]here is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal episode, as long as the Legislature intends such punishme

2019Distinct Acts Having determined that all of Gammage's girlfriend's acts occurred during a single criminal episode, we must still consider whether her acts constituted "distinct acts." See State v. Drawdy, 136 So. 3d 1209, 1213 (Fla. 2014) (holding that if multiple offenses occur within the same criminal episode, "double jeopardy is not implicated - 13 - where each offense is a 'distinct criminal act' "); see also Paul, 934 So. 2d at 1172 n.3 ("Of course, if two convictions occurred based on two distinct criminal acts, double jeopardy is not a concern."); Partch, 43 So. 3d at 760 (considering a

2017In State v. Paul, 934 So.2d 1167 (Fla. 2006), our supreme court gave the following guidance for determining whether multiple convictions arise out of the same criminal episode in'analyzing an asserted Double Jeopardy violation: “[Cjourts look to whether there are multiple victims, whether the .offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses.” Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004) (quoting Staley v. State, 829 So.2d 400, 401 (Fla. 2d DCA 2002)); see also Russo v. State, 804 So.2d 419, 420-21 (Fla. 4th DCA 2001) (same); Cab

2007See United States v. DiFrancesco, 449 U.S. 117, 129 , 101 S.Ct. 426 , 66 L.Ed.2d 328 (1980); see also Carawan v. State, 515 So.2d 161 (Fla.1987) (holding that the scope of the double jeopardy clause of the Florida Constitution is the same as that of the federal constitution), superseded by statute on other grounds as recognized in State v. Smith, 547 So.2d 613, 614 (Fla.1989).

2002With respect to double enhancements, "the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Spann v. State, 772 So.2d 38, 39 (Fla. 4th DCA 2000) (quoting State v. Smith, 547 So.2d 613, 614 (Fla.1989)).

2013Therefore, allowing both convictions to stand, yet withholding the imposition of sentence for one of the offenses, does not cure the double jeopardy violation as it is “the record of appellant’s conviction [that] constitutes the violation of double jeopardy.” Florida v. State, 855 So.2d 109, 111 (Fla. 4th DCA 2003) (rejecting claim that any double jeopardy concerns were rendered harmless where defendant was not sentenced for one of convictions), overruled on other grounds, 894 So.2d 941 (Fla.2005); see also Coughlin, 932 So.2d at 1226 (stating that correcting an alleged double jeopardy violati

2011STANDARD OF REVIEW "A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo." Pizzo v. State, 945 So.2d 1203, 1206 (Fla. 2006) (citing State v. Florida, 894 So.2d 941, 945 (Fla.2005)).

2026Characterizing that issue as one of "constitutional sufficiency" as opposed to "evidentiary sufficiency," id. (quoting Lee v. State, 223 So. 3d 342, 375 (Fla. 1st DCA 2017) (Makar, J., concurring in part, dissenting in part)), the supreme court reasoned that "[a] reviewing court's ability to find evidence in the record to support 15 multiple convictions is insufficient to defeat a double jeopardy claim when nothing in the charging document suggest[ed] that the convictions were based on separate conduct," id. at 1303–04.

2026Characterizing that issue as one of "constitutional sufficiency" as opposed to "evidentiary sufficiency," id. (quoting Lee v. State, 223 So. 3d 342, 375 (Fla. 1st DCA 2017) (Makar, J., concurring in part, dissenting in part)), the supreme court reasoned that "[a] reviewing court's ability to find evidence in the record to support 15 multiple convictions is insufficient to defeat a double jeopardy claim when nothing in the charging document suggest[ed] that the convictions were based on separate conduct," id. at 1303–04.

2025Thus, the ammunition found in both locations indicate Ellis’s possession of each was also not “clearly separate in time and space.” See Strain, 77 So. 3d at 797 . 3 Thus, we remand to the trial court solely to vacate Ellis’s conviction on Count 2 for possession of ammunition by a convicted felon—the lesser offense.2 See Perri, 154 So. 3d at 1205 (“[T]he proper remedy for a double jeopardy violation through dual convictions is the vacation of the conviction for the lesser offense.” (citing Olivard v. State, 831 So. 2d 823, 824 (Fla. 4th DCA 2002))); Hatcher v. State, 401 So. 3d 571 , 572 (Fla.

2020“A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.” Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006). -4- U.S. 299 (1932)] “same-elements” test pursuant to section 775.021(4), Florida Statutes[,] is the sole method of determining whether multiple punishments are double-jeopardy violations.’ ” Shelley, 176 So. 3d at 917 (alterations in original) (quoting Gaber v. State, 684 So. 2d 189, 192 (Fla. 1996)).

2007The first step of the double jeopardy analysis is to inquire "whether each offense has an element that the other does not." Gordon v. State, 780 So.2d 17, 20 (Fla. 2001) (citations omitted); § 775.021(4)(a), Fla. Stat. (2003). [2] For this analysis we look solely to the statutory elements of each crime.

2005In Gordon v. State, 780 So.2d 17 (Fla.2001), we held that convictions as charged of attempted first-degree murder with a firearm and aggravated battery causing great bodily harm did not cause a double jeopardy violation.

2014The Florida Supreme Court has explained how courts are to distinguish “lesser” offenses from “greater” offenses as follows: In distinguishing lesser offenses from greater offenses when faced with a double jeopardy violation, this Court has stated that based upon section 775.021(4), lesser offenses “are those in which the elements of the lesser offense are always subsumed within the greater, without regard to the charging document or evidence at trial.” State v. Florida, 894 So.2d [941] at 947 [ (Fla. 2005) ] (citing State v. McCloud, 577 So.2d 939, 941 (Fla.1991) (holding that an offense is a

2013With respect to ground two, see State v. McCloud, 577 So.2d 939 (Fla.1991) (holding it is not a double jeopardy violation for a defendant to be convicted of both sale and possession of the same quan- turn of cocaine, after the effective date of section 775.021, Florida Statutes (Supp. 1988), as each offense contains an element the other does not).

2024See art. 1, § 9, Fla. Const. (providing that “[n]o person shall be . . . twice put in jeopardy for the same offense”); see also Trappman v. State, 384 So. 3d 742 , 746-47 (Fla. 2024) (explaining that the double jeopardy clause in the Florida Constitution “was intended to mirror [the] intention of those who framed the double jeopardy clause of the fifth amendment” (alteration in original) (quoting Carawan v. State, 515 So. 2d 161, 164 (Fla. 1987))); Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009) (“The constitutional protection against double jeopardy is found in both article I, section 9, of

2024I, § 9, Fla. Const. We have said “that our own double jeopardy clause in article I, section 9, Florida Constitution, which has endured in this state with only minor changes since the constitution of 1845, was intended to mirror [the] intention of those who framed the double jeopardy clause of the fifth amendment.” Carawan v. State, 515 So. 2d 161, 164 (Fla. 1987); see also Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002) (“The scope of the Double Jeopardy Clause is the same in both the federal and Florida Constitutions.”).

2023See Roughton v. State, 185 So. 3d 1207, 1211 (Fla. 2016) (“We recede from our prior decision in Gibbs [v. State, 698 So. 2d 1206 (Fla. 1997),] and hold that a double jeopardy analysis must—in accordance with section 775.021(4)[, Florida Statutes]— be conducted without regard to the accusatory pleading or the proof adduced at trial, even where an alternative conduct statute is implicated.”).

2016We recognize that in Gibbs this Court held that for purposes of determining whether a double jeopardy violation has occurred, courts must analyze an alternative conduct statute—i.e., a statute that proscribes conduct in the alternative, such as a touching of the breasts, buttocks, genitals, or genital area—by breaking out and comparing only the specific alternative conduct that is the same as the conduct prohibited by the other statute being compared, and cannot consider the entire range of conduct proscribed by the statute. 698 So. 2d at 1209-10 .

2005See Ohio v. Johnson, 467 U.S. 493, 498 , 104 S.Ct. 2536 , 81 L.Ed.2d 425 (1984) (holding that the double jeopardy clause's protection against multiple punishments merely prohibits punishment greater than the legislature intended).

2005See Ohio v. Johnson, 467 U.S. 493, 498 , 104 S.Ct. 2536 , 81 L.Ed.2d 425 (1984) (holding that the double jeopardy clause's protection against multiple punishments merely prohibits punishment greater than the legislature intended).