Barber v. State, 011019 FLCA1, 1D17-3782

Docket Nº:1D17-3782
Opinion Judge:WETHERAL, J. JUDGE
Party Name:Timothy Barber, Appellant, v. State of Florida, Appellee.
Attorney:Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant. Ashley Brooke Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
Judge Panel:Wolf and Lewis, JJ, concur
Case Date:January 10, 2019
Court:Florida Court of Appeals, First District
 
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Timothy Barber, Appellant,

v.

State of Florida, Appellee.

No. 1D17-3782

Florida Court of Appeals, First District

January 10, 2019

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

On appeal from the Circuit Court for Leon County. Robert R. Wheeler, Judge.

Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Brooke Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.

WETHERAL, J. JUDGE

Appellant was convicted of multiple offenses arising out of a fight in the parking lot of a fried chicken restaurant, including "burglary of conveyance with person assaulted" (count I) and battery (count III). Appellant raises four issues on appeal, only one of which merits discussion: whether his convictions on counts I and III violate double jeopardy. We affirm.

Appellant was charged in count I with burglary of a conveyance with assault or battery, 1 and he was charged in count III with aggravated battery with a deadly weapon. Both offenses involved the same victim and occurred during the same criminal episode, and both offenses were predicated on the same act: a beating administered to the victim while he was sitting in his car.

The jury found Appellant guilty as charged on count I and guilty of the lesser included offense of battery on count III. On count I, the jury specifically found that in the course of the burglary Appellant committed both an assault and a battery.2 The trial court adjudicated Appellant guilty of both offenses and sentenced him to the scoresheet minimum of 97.43 months in prison on count I and time-served on count III.3

Appellant contends that his convictions on counts I and III violate double jeopardy. We review this claim de novo. Graham v. State, 207 So.3d 135, 137 (Fla. 2016) ("Double jeopardy claims based on undisputed facts present questions of law and are subject to de novo review.").

Double jeopardy bars dual convictions for burglary with battery and simple battery. See Spradley v. State, 537 So.2d 1058 (Fla. 1st DCA...

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