Barnhill v. State, 83-1399

• Citation: 10 Fla. L. Weekly 1461,471 So.2d 160
• Decision Date: 13 June 1985
• Docket Number: No. 83-1399,83-1399
• Parties: 10 Fla. L. Weekly 1461 Arthur BARNHILL, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 160

471 So.2d 160

10 Fla. L. Weekly 1461

Arthur BARNHILL, Jr., Appellant, v. STATE of Florida, Appellee.

No. 83-1399.

District Court of Appeal of Florida,

Fifth District.

June 13, 1985.

James B. Gibson, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.

SHARP, Justice.

Barnhill argues on appeal that his convictions for attempted robbery ¹ and aggravated battery with a deadly weapon ² violate his constitutional double jeopardy rights ³ because the act which constituted the aggravated battery was part of the "overt act" which necessarily formed the factual basis for the attempted armed robbery offense. We disagree in this case and affirm.

The record in this case is adequate to support a finding that two different crimes occurred. Barnhill approached a cashier in a grocery store and gave her a "holdup" note. When she failed to respond, Barnhill pulled out a pistol from a paper bag he was carrying, and said "Don't force me to hurt you."

When the cashier still failed to respond, Barnhill reached across the counter towards the open cash register drawer. The cashier slammed the drawer shut. At that point, Barnhill rushed behind the counter and ordered the cashier to lie down on the floor. When she refused, he hit her over the head twice with the pistol and fled from the store.

The striking of this admirably resistant robbery victim, which was the basis for the aggravated battery charge, could have been found by the jury to have occurred after the robbery attempt had been foiled by the victim's slamming the drawer shut. Since Barnhill made no further attempt to grab the money or to force the cashier to reopen the drawer, the jury could have concluded he abandoned his robbery attempt, and was at that point striking at the victim in retaliation for her resistance. Since there was a sufficient factual basis to support the jury's conviction for both crimes charged, we do not reach the double jeopardy issue. See Mitchell v. State, 407 So.2d 343 (Fla. 4th DCA 1981). The judgment is accordingly

AFFIRMED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., concurring specially with opinion.

COWART, Judge, concurring specially:

THE ISSUE:

The defendant claims that his convictions of attempted armed robbery (§§ 777.04(1); 812.13(2)(a), Fla.Stat.) and aggravated battery with a deadly weapon (§ 784.045(1)(b), Fla.Stat.) violate constitutional double jeopardy (Art. I § 9, Fla. Const.) because the two convictions actually relate to "the same offense" in that the act constituting the aggravated battery was but part of the "overt act" that constituted the factual basis for the attempted armed robbery conviction.

THE FACTS:

The defendant approached a cashier in a grocery store and laid a "hold-up" note on the counter. The cashier failed to respond. The defendant pulled a pistol from a paper bag and stated, "Don't force me to hurt you." The cashier did nothing. The defendant reached across the counter toward an open cash register drawer. The cashier slammed the drawer shut. The defendant went around the counter and ordered the cashier to get on the floor. The cashier refused. The defendant hit the cashier twice on the head with his pistol and forthwith fled from the store.

DOUBLE JEOPARDY:

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), Blockburger contended that double jeopardy prohibited his trial on both counts three and five because each of those counts related to one and the exact same factual event, being one drug sale to one person at one time on one day. The court rejected that argument and differentiated between the two charges in those counts on the basis that, in substance, the statutory offense on which each charge was based was separate and distinctly different from the other because each statutory offense contained an essential constituent element that the other statutory offense did not require. Blockburger next contended that double jeopardy prohibited his trial on both counts two and three because both of those counts related to the exact same statutory offense (a sale of drugs not in or from the original stamped package) and, accordingly, each of those offenses had the exact same essential constituent elements. The court rejected that double jeopardy argument and differentiated between the charges in those counts on the basis that, in substance, the factual event on which each charge was based was separate and distinctly different from the factual event on which the other charge was based in that each count (counts two and three) factually related to a different drug sale on a different day. Thus Blockburger illustrates that the determination of whether two certain charged criminal offenses are "the same offense" within the double jeopardy prohibition, requires a two-step analysis. ¹ The first step is to make a purely theoretical analysis and abstract comparison of the essential constituent elements of the two offenses ² and the second step compares the factual bases for the two prosecutions. ³ If each offense contains at least one element not required by the other offense, the two offenses are theoretically and substantively different and are never "the same offense" and no further analysis is required because double jeopardy does not apply. ⁴ However, if both offenses have the exact, same constituent elements, or when one offense includes all the elements of the other (a necessarily lesser included offense situation) it is then necessary to examine the factual basis for the charge as to each offense to determine whether, notwithstanding that the two offenses are theoretically the same, each charge has a different factual basis. Even if two charges are theoretically "the same offense" if the charge as to each offense necessarily rests, in some essential part, on a different set of facts than that supporting the other charge (i.e., if one offense requires proof of facts not required by the other offense), the defendant can be put in jeopardy (that is, charged, tried, convicted and punished) as to both offenses. It is only when two charged offenses are theoretically "the same offense" and both also have but one and the same factual basis that the two charged offenses are truly constitutionally "the same offense" and the defendant cannot be lawfully put in jeopardy as to both. ⁵

DOUBLE JEOPARDY ANALYSIS OF AN ATTEMPT:

Every attempt crime requires proof of an "overt act going beyond mere preparation but falling short of execution of the ultimate design" and a double jeopardy problem arises when the overt act used to prove an attempt crime includes proof of all of the elements of any other completed crime, and...