Powers v. State

• Decision Date: 05 February 2020
• Docket Number: Case No. 2D17-4237
• Parties: RYAN TODD POWERS, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

RYAN TODD POWERS, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D17-4237

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

February 5, 2020

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Lee County; J. Frank Porter, Judge.

Howard L. Dimmig, II, Public Defender, and Richard J. D'Amico, Special Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.

KELLY, Judge.

Ryan Todd Powers was convicted of four counts of exploiting his elderly parents in violation of section 825.103, Florida Statutes (2016). He raises five issues on appeal. We find no merit in four of those issues; however, we agree with Powers' double jeopardy argument and reverse on that issue.

Powers argues that the trial court erred in denying his motion to dismiss the Fourth Amended Information because two of the four counts constitute the same crime and therefore violate his constitutional right against double jeopardy. The State contends that this issue is not preserved for our review because Powers' motion to dismiss was directed at a prior version of the information. Although the record confirms the State's contention, this issue is reviewable because double jeopardy violations constitute fundamental error which may be raised for the first time on appeal. See Meythaler v. State, 175 So. 3d 918, 919 (Fla. 2d DCA 2015) (noting in part that a double jeopardy argument can be raised for the first time on appeal where the double jeopardy violation is apparent on the face of the record).

In determining whether multiple convictions based on the same conduct constitute a violation of double jeopardy, an appellate court may consider only the charging document, not the entire record. Lee v. State, 258 So. 3d 1297, 1303-04 (Fla. 2018); see also Morejon-Medina v. State, 277 So. 3d 1118, 1121 (Fla. 2d DCA 2019). Here, count one of the Fourth Amended Information charged Powers with exploitation of the elderly under section 825.103(1)(a), which requires proof of obtaining property from an elderly person with the intent to deprive the person of the asset. Count two charged exploitation of the elderly under section 825.103(1)(c), which requires proof that a person breached a fiduciary duty to an elderly person by making an unauthorized appropriation, sale, or transfer of property. Both counts involve the same time period and...