State v. Barton, 523 So. 2d 152 (Fla. 1988). · Go Syfert
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State v. Barton, 523 So. 2d 152 (Fla. 1988). Cases Citing This Book View Copy Cite
87 citation events (37 in the last 25 years) across 5 distinct courts.
Strongest positive: Jerry Richardson v. State of Florida (fladistctapp, 2024-06-19)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Jerry Richardson v. State of Florida
Fla. Dist. Ct. App. · 2024 · confidence medium
Cf. State v. Shelley, 176 So. 3d 914, 919 (Fla. 2015) (approving vacatur of lesser offense where “dual convictions . . . based upon the same conduct impermissibly place[d the defendant] in double jeopardy”); Pizzo v. State, 945 So. 2d 1203, 1206, 1207 (Fla. 2006) (concluding that the district court of appeal “should have vacated” the “lesser offenses” as a remedy for a double-jeopardy violation, because “[w]hen an appellate court determines that dual convictions are impermissible, [it] should reverse the lesser offense conviction and affirm the greater”); State v. Barton, 523 S…
cited Cited as authority (rule) Menard v. Florida Attorney General (Collier County)
M.D. Fla. · 2020 · confidence medium
State v. Barton, 523 So. 2d 152, 153 (Fla. 1988).
examined Cited as authority (rule) State of Florida v. Timothy W. Tuttle, Jr. (4×) also: Cited "see"
Fla. · 2015 · confidence medium
The rule the Court announced in State v. Barton, 523 So.2d 152, 153 (Fla.1988), that “when impermissible dual convictions have occurred” “the conviction of the lesser crime should be set aside” is a rule that must have a rationale.
discussed Cited as authority (rule) Jessica Patrice Anucinski v. State of Florida (2×)
Fla. · 2014 · confidence medium
See Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006) (“When an appellate court determines that dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the greater.”); State v. Barton, 523 So. 2d 152, 153 (Fla. 1988) (stating that when “one of two convictions must fall, we hold that the conviction of the lesser crime should be set aside”).
discussed Cited as authority (rule) Denson v. State
Fla. Dist. Ct. App. · 2014 · confidence medium
See Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) (“When an appellate court determines that dual convictions are impermissible [because they would violate double jeopardy prohibitions], the appellate court should reverse the lesser offense conviction and affirm the greater.”); State v. Barton, 523 So.2d 152, 153 (Fla.1988) (same).
discussed Cited as authority (rule) Williams v. State
Fla. · 2013 · confidence medium
As reflected on the standard verdict form, Florida Standard Jury Instruction (Crim.) 3.12, if a jury “return[s] a verdict of guilty, it should be for the highest offense which is been proven beyond a reasonable doubt.” Where a jury returns impermissible dual convictions, “the conviction of the lesser crime should be set aside.” State v. Barton, 523 So.2d 152, 153 (Fla.1988); see also Pizzo v. State, 945 So.2d 1203, 1206 (2006) (‘When an appellate court determines that dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the g…
discussed Cited as authority (rule) Aubuchon v. State
Fla. Dist. Ct. App. · 2013 · confidence medium
The general rule is that “[w]hen an appellate court determines that dual convictions are impermissible, the appellate court should reverse the lesser offense conviction and affirm the greater.” Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) (citing State v. Barton, 523 So.2d 152, 153 (Fla.1988)).
cited Cited as authority (rule) Henry v. State
Fla. Dist. Ct. App. · 2011 · confidence medium
Id. (citing State v. Barton, 523 So.2d 152, 153 (Fla.1988)).
discussed Cited as authority (rule) Cardonne v. State
Fla. Dist. Ct. App. · 2011 · confidence medium
As in Pizzo v. State, 945 So.2d 1203, 1206-07 (Fla.2006), we vacate the defendant’s conviction for grand theft as a lesser included offense of his conviction for organized fraud; it being settled in Florida that where convictions for grand theft and organized fraud are based upon the same conduct, “double jeopardy principles preclude convictions for both” and “the appellate court should reverse the lesser offense conviction and affirm the greater.” Id. at 1206 (citing State v. Barton, 523 So.2d 152, 153 (Fla.1988)).
cited Cited as authority (rule) Raines v. State
Fla. Dist. Ct. App. · 2009 · confidence medium
Id. (citing State v. Barton, 523 So.2d 152, 153 (Fla.1988)).
cited Cited as authority (rule) Keene v. State
Fla. Dist. Ct. App. · 1992 · confidence medium
Barton v. State, 523 So.2d 152, 153 (Fla. 1988).
cited Cited as authority (rule) Guardado v. State
Fla. Dist. Ct. App. · 1990 · confidence medium
Following the reasoning in State v. Barton, 523 So.2d 152, 153 (Fla. 1988), the sentence for aggravated child abuse must be reversed.
cited Cited as authority (rule) Rivera v. State
Fla. Dist. Ct. App. · 1989 · confidence medium
In State v. Barton, 523 So.2d 152, 153 (Fla. 1988), the supreme court ruled that where a Carawan analysis is applied, the conviction of the highest sustainable crime should stand.
cited Cited "see" OBRIAN OAKLEY v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2018 · signal: see · confidence high
See Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006) (citing State v. Barton, 523 So. 2d 152, 153 (Fla. 1988)).
cited Cited "see" Utile v. State
Fla. Dist. Ct. App. · 2018 · signal: see · confidence high
See Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987), quashed in part on other grounds, 523 So.2d 152 (Fla. 1988).
cited Cited "see" Marcsene Utile v. State
Fla. Dist. Ct. App. · 2018 · signal: see · confidence high
See Barton v. State, 507 So. 2d 638 (Fla. 5th DCA 1987), quashed in part on other grounds, 523 So. 2d 152 (Fla. 1988).
cited Cited "see" Harris v. State
Fla. Dist. Ct. App. · 2013 · signal: see · confidence high
See State v. Barton, 523 So.2d 152, 153 (Fla.1988).
cited Cited "see" Fleming v. State
Fla. Dist. Ct. App. · 2011 · signal: see · confidence high
See State v. Barton, 523 So.2d 152, 153 (Fla.1988).
cited Cited "see" Luciano v. State
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987), rev. on other grounds, 523 So.2d 152 (Fla.1988).
cited Cited "see" Pizzo v. State
Fla. · 2006 · signal: see · confidence high
See State v. Barton, 523 So.2d 152, 153 (Fla.1988) (stating that when "one of two convictions must fall, we hold that the conviction of the lesser crime should be set aside").
cited Cited "see" Lopez-Vazquez v. State
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See State v. Barton, 523 So.2d 152, 153 (Fla.1988); McGlorthon v. State, 908 So.2d 554 , 556 n. 2 (Fla. 2d DCA 2005).
cited Cited "see" McGlorthon v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See generally State v. Barton, 523 So.2d 152, 153 (Fla. 1988).
cited Cited "see" Anderson v. State
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla.1988). 2 AFFIRMED IN PART AND REVERSED IN PART.
cited Cited "see" Cruller v. State
Fla. · 2002 · signal: see · confidence high
See State v. Barton, 523 So.2d 152, 153 (Fla.1988).
cited Cited "see" State v. Reardon
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla. 1988).
cited Cited "see" Damien v. State
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla.1988).
cited Cited "see" Banks v. State
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla.1988).
cited Cited "see" Wolf v. State
Fla. Dist. Ct. App. · 1996 · signal: see · confidence high
See State v. Barton, 523 So.2d 152, 153 (Fla.1988).
cited Cited "see" Larry Williams v. Harry K. Singletary
11th Cir. · 1996 · signal: see · confidence high
See State v. Barton, 523 So.2d 152, 153 (Fla.1988); Febles, 654 So.2d at 615 ; Bradley, 540 So.2d at 187 ; Slater, 543 So.2d at 425 ; Spradley, 537 So.2d at 1061 .
cited Cited "see" Febles v. State
Fla. Dist. Ct. App. · 1995 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla. 1988).
cited Cited "see" Fjord v. State
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla. 1988).
discussed Cited "see" Singleton v. State
Fla. Dist. Ct. App. · 1990 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla. 1988). [3] Next, we strike the costs imposed by the trial court because they were imposed without prior notice and hearing. *1298 See Wood v. State, 544 So.2d 1004 (Fla. 1989); Mays v. State, 519 So.2d 618 (Fla. 1988); Jenkins v. State, 444 So.2d 947 (Fla. 1974).
cited Cited "see" Smith v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See State v. Barton, 523 So.2d 152, 153 (Fla. 1988).
cited Cited "see" Smith v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See State v. Barton, 523 So.2d 152, 153 (Fla.1988).
cited Cited "see" State v. Armstrong
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla.1988). .The scoresheet upon which the defendant was sentenced scored the vehicular homicide conviction which we are reversing.
cited Cited "see" Williams v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla. 1988). [2] We affirm the conviction for sale of cocaine and vacate the conviction for possession of cocaine.
cited Cited "see" Adams v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla.1988).
cited Cited "see" Kocol v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla. 1988).
cited Cited "see" Jelks v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla.1988).
cited Cited "see" Jackson v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla.1988).
cited Cited "see" Bradley v. State
Fla. Dist. Ct. App. · 1989 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla. 1988).
cited Cited "see" J.M. v. State
Fla. Dist. Ct. App. · 1988 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla.1988).
cited Cited "see" Reedy v. State
Fla. Dist. Ct. App. · 1988 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla.1988).
cited Cited "see" Neal v. State
Fla. Dist. Ct. App. · 1988 · signal: see · confidence high
See State v. Barton, 523 So.2d 152 (Fla. 1988).
discussed Cited "see, e.g." Means v. State
Fla. Dist. Ct. App. · 2013 · signal: see also · confidence medium
In Pizzo v. State, the Florida Supreme Court directed appellate courts in this situation to set aside the conviction on the lesser offense and to affirm the greater offense. 945 So.2d 1203, 1206 (Fla.2006); see also State v. Barton, 523 So.2d 152, 153 (Fla.1988) (holding that when one of two convictions must fall under a double jeopardy analysis, the conviction of the lesser crime should be set aside).
discussed Cited "see, e.g." Henry v. State
Fla. Dist. Ct. App. · 2006 · signal: see also · confidence low
See Zapata v. State, 905 So.2d 944, 945 (Fla. 3d DCA 2005) (holding where “two convictions arise from the same continuous criminal act or episode, one of the convictions must be vacated”); see also State v. Barton, 523 So.2d 152 , 153 n. 3 (Fla.1988) (“In cases involving convictions of greater and lesser included offenses, it is the lesser rather than the greater sentence which is vacated.”).
cited Cited "see, e.g." TSR v. State
Fla. Dist. Ct. App. · 1992 · signal: see also · confidence low
See also State v. Barton, 523 So.2d 152 (Fla. 1988).
cited Cited "see, e.g." T.S.R. v. State
Fla. Dist. Ct. App. · 1992 · signal: see also · confidence low
See also State v. Barton, 523 So.2d 152 (Fla.1988).
discussed Cited "see, e.g." Donovan v. State
Fla. Dist. Ct. App. · 1990 · signal: see, e.g. · confidence low
See, e.g., State v. Barton, 523 So.2d 152 (Fla. 1988); Bell v. State, 437 So.2d 1057 (Fla. 1983); Wilcher v. State, 524 So.2d 1105 (Fla. 3d DCA 1988); Young v. State, 506 So.2d 13, 15 (Fla. 5th DCA), cert. denied, 515 So.2d 231 (Fla. 1987); Gordon v. State, 457 So.2d 1095 *527 (Fla. 5th DCA 1984), approved, 478 So.2d 1063 (Fla. 1985).
discussed Cited "see, e.g." Bogan v. State
Fla. Dist. Ct. App. · 1989 · signal: see also · confidence low
Reflecting this, even Ca-rawan itself expresses its basic conclusion as holding that “dual punishments for attempted manslaughter and aggravated battery arising from the single act ... are impermissible.” Carawan, 515 So.2d at 171 (emphasis supplied), quoted in State v. Barton, 523 So.2d at 153 ; see Jenrette v. State, 390 So.2d 781, 781 (Fla. 3d DCA 1980) (“Because of the manifestly more severe consequences of aggravated battery, we conclude that it is the “greater” of the two crimes_” [e.s.]) (footnotes omitted); see also State v. Barton, 523 So.2d at 153 n. 3 (“In cases involv…
Retrieving the full opinion text from the archive…
STATE of Florida, Petitioner,
v.
Stanley James BARTON, Respondent.
70738.
Supreme Court of Florida.
Mar 31, 1988.
523 So. 2d 152
Grimes.
Cited by 77 opinions  |  Published

Robert A. Butterworth, Atty. Gen. and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for petitioner.

James B. Gibson, Public Defender and Kenneth Witts, Asst. Public Defender, Daytona Beach, for respondent.

GRIMES, Justice.

We have for review Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987), because of apparent conflict with Pitts v. State, 425 So.2d 542 (Fla. 1983). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution.

Stanley James Barton was convicted of attempted manslaughter,[1] aggravated battery[*153] and the use of a weapon while committing a felony. All of the convictions arose from a single incident where Barton cut his victim across the neck with a single swipe of a hawk-billed knife. Barton appealed to the Fifth District Court of Appeal contending that the dual convictions for attempted manslaughter and aggravated battery violated his constitutional protection against double jeopardy. Finding that the two verdicts were inconsistent with each other because they involved mutually exclusive crimes, the fifth district affirmed the conviction for the lesser crime (attempted manslaughter — a third-degree felony) and reversed the conviction for the greater crime (aggravated battery — a second-degree felony). The state then petitioned this Court for review.

Convictions for attempted manslaughter and aggravated battery do not constitute double jeopardy because each crime contains a separate element not contained in the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Nevertheless, in Carawan v. State, 515 So.2d 161 (Fla. 1987), this Court recently considered the propriety of multiple convictions for the same conduct. We applied the principle of lenity to hold that "dual punishments for attempted manslaughter and aggravated battery arising from the single act ... are impermissible." Id. at 171. Consequently, the district court of appeal correctly ruled that Barton could not be convicted of both attempted manslaughter and aggravated battery.

We do not agree, however, that the greater rather than the lesser crime must be reversed. The district court of appeal held that when Barton was found guilty of attempted manslaughter, he was necessarily acquitted of aggravated battery despite the jury's separate verdict to the contrary. The court reasoned that the conviction for attempted manslaughter negated the absence of the intent to kill which the court conceived to be an element of aggravated battery.

We cannot accept this analysis. We are unaware that the absence of an intent to kill is an essential element of the crime of aggravated battery. The crimes of attempted manslaughter and aggravated battery are not mutually exclusive. Allison v. Mayo, 158 Fla. 700, 29 So.2d 750 (1947), the case relied upon by the district court of appeal, is inapplicable because there the conviction of the greater crime of breaking and entering was vacated only because the defendant had also been convicted of the lesser crime of entering without breaking on the same facts. Where one is convicted of two separate crimes arising out of the same incident, the greater crime will be vacated in those instances in which the conviction of the lesser crime has the effect of exonerating him of the greater. Redondo v. State, 403 So.2d 954 (Fla. 1981). However, a jury verdict of guilt will be set aside only when it is legally inconsistent with another. Pitts. Here, the verdict finding Barton guilty of attempted murder did not disprove his guilt of aggravated battery.[2]

In Carawan, the case was remanded to vacate either the attempted manslaughter or aggravated battery conviction. However, our decision to remand in that case was not meant as a statement that every case must be remanded when impermissible dual convictions have occurred. As in cases where double jeopardy is applied to dual convictions, Shade v. State, 400 So.2d 850 (Fla. 1st DCA 1981), there appears to be no reason why the lesser conviction should not be vacated since the defendant has been found guilty of both crimes.[3] Henceforth, when a Carawan analysis is applied and one of two convictions must fall, we hold that the convictions of the lesser crime should be set aside.

[*154] We affirm the district court's holding to the extent that the dual convictions for attempted manslaughter and aggravated battery are impermissible. We quash that part of the decision concerning which conviction to vacate and remand with directions to reinstate the conviction of aggravated battery and to vacate the conviction of attempted manslaughter.

It is so ordered.

McDONALD, C.J., and OVERTON, EHRLICH, BARKETT and KOGAN, JJ., concur.

SHAW, J., concurs in part and dissents in part with an opinion.

SHAW, Justice, concurring in part and dissenting in part.

I concur with that part of the majority opinion holding that the conviction for the lesser, not the greater, offense should be vacated. This is consistent with the rule in the standard jury instructions that the jury find guilt on the greater, not the lesser included, offense if both offenses are proven. For the reasons given in my dissent to Carawan v. State, 515 So.2d 161, 171 (Fla. 1987), I dissent from the holding that the rule of lenity should override the clear statement of legislative intent in section 775.021(4), Florida Statutes (1983), that separate offenses shall be separately punished.

1 This conviction resulted from a jury verdict on the charged crime of attempted first-degree murder.
2 Because it is unnecessary to our decision, we do not decide the effect of Florida Standard Jury Instruction (Criminal) 2.08(a) upon the argument against inconsistent verdicts. See McKee v. State, 450 So.2d 563 (Fla. 3d DCA 1984).
3 In cases involving convictions of both the greater and lesser included offenses, it is the lesser rather than the greater sentence which is vacated. See Russell v. State, 430 So.2d 617 (Fla. 2d DCA 1983); Ervin v. State, 419 So.2d 409 (Fla. 2d DCA 1982).