State v. Johnson, 93-2734

• Decision Date: 26 October 1994
• Docket Number: No. 93-2734,93-2734
• Citation: 644 So.2d 1028
• Parties: 19 Fla. L. Weekly D2266 The STATE of Florida, Appellant, v. Robert L. JOHNSON, Appellee.
• Court: Florida District Court of Appeals

Page 1028

644 So.2d 1028

19 Fla. L. Weekly D2266

The STATE of Florida, Appellant, v. Robert L. JOHNSON, Appellee.

No. 93-2734.

District Court of Appeal of Florida Third District.

Oct. 26, 1994.

Rehearing Denied Nov. 30, 1994.

Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellant.

Bennett H. Brummer, Public Defender, and Manuel Alvarez, Asst. Public Defender, for appellee.

Before BASKIN, JORGENSON, and GERSTEN, JJ.

PER CURIAM.

The State appeals from an order dismissing, on double jeopardy grounds, a charge of aggravated stalking. We affirm.

In March, 1993, a permanent injunction against domestic violence was served upon Johnson. The injunction prohibited him from engaging in any criminal offense resulting in physical injury to Andrea Green, entering onto her place of residence or place of employment, or abusing, threatening, or harassing her. Johnson violated the terms of the injunction by entering Green's place of residence, and pled no contest to the charge of criminal contempt that arose from that violation.

At the same time, and based upon the same conduct--Johnson's entry onto Green's residence--the State filed an information charging Johnson with aggravated stalking by violating a prior injunction. Johnson moved to dismiss the information on the ground of double jeopardy; the trial court granted the motion.

The trial court properly dismissed the charge of aggravated stalking. To determine whether the double jeopardy provision bars a subsequent prosecution, the Supreme Court has applied the "same-elements test" ¹ which "inquires whether each offense contains an element not contained in the other; if not, they are the 'same offence' and double jeopardy bars additional punishment and successive prosecution." United States v. Dixon, 509 U.S. ----, ----, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556, 568-69 (1993) (citations omitted). In Dixon, the Court applied the same-elements test to bar a prosecution for possession of cocaine with intent to distribute after Dixon had already been found guilty of contempt of court for violating a condition of his release by engaging in a criminal act, namely the precise substantive offense with which he had been charged: possession of cocaine with intent to distribute. The crime of violating a condition of his release could not be "abstracted from the 'element' of the violated condition." Dixon, 509 U.S. at ----, 113 S.Ct. at 2857, 125 L.Ed.2d at 569-70.

In this case, as in...