537 So.2d 1058 (Fla.App. 1 Dist. 1989), 87-506, Spradley v. State

Docket Nº:87-506.
Citation:537 So.2d 1058, 14 Fla. L. Weekly 224
Opinion Judge:Author: Nimmons
Party Name:Cleveland SPRADLEY, Jr., Appellant, v. STATE of Florida, Appellee.
Attorney:Michael E. Allen, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, for Appellant.
Case Date:January 18, 1989
Court:Florida Court of Appeals, First District
 
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Page 1058

537 So.2d 1058 (Fla.App. 1 Dist. 1989)

14 Fla. L. Weekly 224

Cleveland SPRADLEY, Jr., Appellant,

v.

STATE of Florida, Appellee.

No. 87-506.

Florida Court of Appeals, First District.

January 18, 1989

Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., Kurt L. Barch, Asst. Atty. Gen., for appellee.

NIMMONS, Judge.

Cleveland Spradley, Jr. appeals from final judgments and sentences by which he was convicted and sentenced, pursuant to jury trial, for: (1) burglary with a battery, in violation of Section 810.02(2)(a), Florida Statutes; 1 (2) battery, in violation of Section

Page 1059

784.03, Florida Statutes; and (3) petit theft, in violation of Section 812.014, Florida Statutes. In the two issues raised on appeal, appellant claims: (1) that he was improperly convicted and sentenced for both burglary with a battery and simple battery; and (2) that this judgment erroneously classified battery as a third degree felony. We agree with appellant as to both issues and reverse. 2

The relevant facts in this case are that, upon arriving home one evening, the victim saw that a light was on in the back room. The victim entered the room and observed a pair of legs in a sliding closet. Before he knew what was happening, he was on the floor and had been hit several times. It was later discovered that a bowl of coins and a pair of socks had been stolen.

Appellant was subsequently charged and found guilty of the above three charges. Appellant was sentenced to 4 1/2 years imprisonment followed by 15 years probation for the burglary; a concurrent term of 60 days for the petit theft; and a concurrent term of one year for the battery.

At issue in this case is whether appellant's convictions and sentences for both burglary with a battery and battery violate the state and federal constitutions' prohibition against double jeopardy, i.e., against subjecting a defendant to multiple punishments for the same offense. We conclude that appellant's double jeopardy rights have been violated.

The Double Jeopardy Clause is cast explicitly in terms of being "twice put in jeopardy." This clause has consistently been interpreted to protect an individual against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The Double Jeopardy Clause's protection against multiple punishments, however, with respect to cumulative sentences imposed in a single trial, does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). It is the legislature, and not the courts, that prescribe the scope of punishments. 459 U.S. at 368, 103 S.Ct. at 679.

Before reaching the question of any possible constitutional violation, it is important to first determine what the legislature intended to punish and precisely how. The question of what punishments are constitutionally permissible is no different from the question of what punishments the legislature intended to be imposed. Where the legislature intends to impose multiple punishments, imposition of such sentences does not violate the constitution. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). Thus, where the legislature clearly, unambiguously and precisely states an intent to punish the exact same offense under separate statutory provisions, a double jeopardy problem does not exist. See...

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