Richardson v. Lewis, 92-04098

Decision Date20 July 1994
Docket NumberNo. 92-04098,92-04098
Citation639 So.2d 1098
Parties19 Fla. L. Weekly D1573 Clarence RICHARDSON, Appellant, v. Celveta LEWIS, Appellee.
CourtFlorida District Court of Appeals

Geoffrey A. Foster, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Michele Taylor, Asst. Atty. Gen., Tampa, for appellee.

THREADGILL, Judge.

The appellant challenges the trial court's order denying his motion to dismiss an indirect criminal contempt charge on double jeopardy grounds. We affirm.

On October 8, 1991, the circuit court issued an injunction for protection prohibiting the appellant from, among other things, committing battery on or entering the residential premises of his former girlfriend. The appellant was later charged with indirect criminal contempt for violating the injunction by entering the home and attacking the former girlfriend. The state attorney also charged the appellant with armed burglary and aggravated battery arising out of this same incident.

The appellant was found guilty at jury trial of armed trespass and aggravated battery. Thereafter, he filed a motion to dismiss the criminal contempt charge on the ground that prosecution would place him twice in jeopardy for an incident for which he had already been convicted. The trial court denied the motion and the appellant pleaded nolo contendere to contempt, reserving the right to appeal the denial of his motion to dismiss. He was sentenced to time served in the county jail.

The constitutional protection against double jeopardy assures that no person shall be twice put in jeopardy for the same offense. U.S. Const. amend. V; Fla. Const. Art. I, § 9. This protection applies in nonsummary criminal contempt prosecutions just as it does in other criminal prosecutions. United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). The test for determining whether the double jeopardy bar applies in a particular case is the "same-elements" test announced in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This test inquires whether each of the two offenses for which the defendant is punished or tried contains an element not contained in the other; if not, they are the same offense and successive prosecution is barred. Dixon, 509 U.S. at ----, 113 S.Ct. at 2856, 125 L.Ed.2d at 568; see also § 775.021(4), Fla.Stat. (1991). 1

We affirm the appellant's conviction and sentence for indirect criminal contempt on the authority of Dixon. Applying a Blockburger analysis to the instant offenses, we note that aggravated battery requires proof of great bodily harm, permanent disability, permanent disfigurement, or use of a deadly weapon which simple battery, as prohibited by the injunction, does not. Likewise, armed trespass requires proof that the offender was armed with a firearm or other dangerous weapon, while entry into the premises, as prohibited by the injunction, does not. Finally, a conviction for criminal contempt, arising out of a battery or entry onto the former girlfriend's premises, requires proof of a knowing and willful violation...

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5 cases
  • Walker v. Bentley
    • United States
    • Florida District Court of Appeals
    • August 30, 1995
    ...L.Ed.2d 556; Fierro v. State, 653 So.2d 447 (Fla. 1st DCA 1995); State v. Miranda, 644 So.2d 342 (Fla. 2d DCA 1994); Richardson v. Lewis, 639 So.2d 1098 (Fla. 2d DCA 1994); Hernandez, 624 So.2d 782. The 1994 amendments established first-degree misdemeanors to punish a broad spectrum of acts......
  • Gordon v. State
    • United States
    • Florida Supreme Court
    • February 22, 2001
    ...whether each offense has an element that the other does not. See State v. Craft, 685 So.2d 1292 (Fla.1996); Richardson v. Lewis, 639 So.2d 1098, 1099 (Fla. 2d DCA 1994). If so, then they are considered separate offenses, and the defendant may be convicted and punished for each offense. Seve......
  • State v. Rothwell, 1D06-5713.
    • United States
    • Florida District Court of Appeals
    • May 27, 2008
    ...So.2d 422 (Fla.1977). Double jeopardy protections pertain upon that type of contempt, as indicated in cases such as Richardson v. Lewis, 639 So.2d 1098 (Fla. 2d DCA 1994). See also United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). However, double jeopardy does no......
  • Fierro v. State, 93-1952
    • United States
    • Florida District Court of Appeals
    • April 4, 1995
    ...battery "was incorporated into and could not be abstracted from the injunction for protection which was violated." Richardson v. Lewis, 639 So.2d 1098, 1100 (Fla. 2d DCA 1994). Similarly, in the present case, the contempt based on violation of the temporary custody order cannot be abstracte......
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