Bailey v. State

• Decision Date: 06 November 2009
• Docket Number: No. 5D08-1501.,5D08-1501.
• Citation: 21 So.3d 147
• Parties: Jennifer BAILEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

21 So.3d 147

Jennifer BAILEY, Appellant, v. STATE of Florida, Appellee.

No. 5D08-1501.

District Court of Appeal of Florida, Fifth District.

November 6, 2009.

James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

This appeal questions whether double jeopardy bars Appellant's convictions for carjacking with a weapon and aggravated assault (deadly weapon). We find it does not and affirm.

Appellant entered an open no contest plea to charges of carjacking with a weapon, aggravated assault (deadly weapon), and petit theft. During the plea hearing, the State offered the following factual predicate. The victim was driving to work around 6:20 a.m. when she observed Appellant crying and waving her arms at an intersection. When the victim rolled down her window, Appellant explained that her van had broken down and she needed a ride home. The victim agreed and drove to Appellant's neighborhood. Once there, she asked Appellant to get out so that she could get to work on time. Appellant reached forward as if to pick up her purse, but instead thrust a six-inch knife towards the victim's throat. The victim held Appellant's knife arm away with one hand while she attempted to release her seatbelt with her other hand. Appellant grabbed the victim's free hand and demanded her money, purse, and phone. Fearing for her life, the struggling victim released the brake pedal, causing Appellant to panic. During the ensuing melee, the victim jumped from the vehicle and Appellant drove off. Law enforcement located the vehicle later that day next to a drainage ditch where the victim's purse, without her personal property, had been abandoned. Defense counsel added that Appellant told the police that the two men she left with her broken-down van had given her the knife with instructions to get another vehicle and money. The police apprehended the two men, who had criminal records, while they were attempting to refuel her van.

Although Appellant failed to raise the double jeopardy issue below, such a claim raises a question of fundamental error that can be raised for the first time on direct appeal. See Crites v. State, 959 So.2d 1265, 1267 (Fla. 5th DCA 2007), citing Scarola v. State, 889 So.2d 108, 109-10 (Fla. 5th DCA 2004) (en banc). Although a guilty plea and adjudication of guilt generally preclude a later double jeopardy attack, an exception applies when, as in this case, there is a general or open plea, the double jeopardy is apparent from the face of the record, and there is nothing in the record to indicate a waiver of double jeopardy. See Brown v. State, 1 So.3d 1231 (Fla. 2d DCA 2009), citing Novaton v. State, 634 So.2d 607, 609 (Fla. 1994). The appeal is permitted by Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)e., as one "otherwise provided by law." Barfield v. State, 871 So.2d 929, 930 (Fla. 5th DCA 2004). A double jeopardy claim based on undisputed facts presents a pure question of law and is reviewed de novo. Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006).

Appellant argues that because the single action of thrusting a knife toward the victim comprised the elements of both offenses, her conviction for aggravated assault with a deadly weapon was subsumed by the greater offense of armed carjacking and, therefore, violates double jeopardy. The analysis turns upon a comparison of the statutory elements of the offenses, rather than a focus upon the single action she committed. See Pizzo, 945 So.2d at 1207, approving Donovan v. State, 572 So.2d 522 (Fla. 5th DCA 1990).

Carjacking involves the following elements: (1) the taking of a motor vehicle from the person or custody of another; (2) with the intent to either permanently or temporarily deprive the person of the motor vehicle; and (3) during the taking, there is the use of force, violence, assault, or putting in fear. § 812.133(1), Fla. Stat. (2007). If, in the course of committing the carjacking, the offender carried a firearm or other deadly weapon, the offense is a felony of the first degree. § 812.133(2)(a). In comparison, aggravated assault is an assault with a deadly weapon without intent to kill. §§ 784.021(1)(a), 784.011, Fla. Stat. (2007).

In Law v. State, 824 So.2d 1055 (Fla. 5th DCA 2002), this court held that armed carjacking does not subsume aggravated assault with a firearm where the defendant's use of the gun to gain entry to the house was separate and apart from his subsequent act of armed carjacking. Law relied upon Hayes v. State, 803 So.2d 695 (Fla.2001), which held that armed robbery and the subsequent grand theft of the same victim's automobile were criminal acts sufficiently separated by time, place, and circumstance to permit dual convictions and punishments without violating double jeopardy. The prohibition against double jeopardy does not prohibit multiple convictions and punishments...