Trappman v. State
| Decision Date | 10 February 2021 |
| Docket Number | No. 1D19-1883,1D19-1883 |
| Citation | 325 So.3d 944 |
| Parties | David William TRAPPMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
David William Trappman, pro se, Appellant.
Jessica J. Yeary, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
David Trappman (Appellant) appeals his convictions for aggravated battery of a law enforcement officer, battery of a law enforcement officer, and resisting arrest. He argues that his conviction and sentencing on both battery charges violate double jeopardy. As explained herein, we disagree and affirm.
Appellant was arrested after an incident at his home, when police appeared to execute an arrest warrant for his wife. Agitated with the police presence and their failure to immediately present a copy of the warrant, Appellant walked from his yard and entered his home while commenting that he hoped officers did not "get bitten by my dog."
Once officers entered the home, Appellant was instructed to proceed back outside with his two dogs while the warrant on his wife was executed. At trial, officers testified that Appellant initially complied; however, once outside, he began to rile up the dogs by banging their heads together and yelling at them. He eventually reappeared in the doorway of the home holding both dogs by the collars and refused the officers’ orders to go back outside. Sergeant Bird—the victim of both batteries—testified that when he approached, Appellant reached out and shoved him with one hand. Sergeant Bird responded by driving Appellant towards the front door with both hands. Appellant then let go of a dog while exclaiming "dog up, dog up." The dog, a pit bull, leapt at Sergeant Bird and latched onto his leg, causing injury and subsequent scarring.
The theory of the State's case was that Appellant had initially committed battery by shoving Sergeant Bird, and that he separately committed aggravated battery by subsequently "siccing" the dog on Bird.1 The jury apparently agreed, as Appellant was found guilty as charged. The trial court then adjudicated Appellant guilty on all charges and sentenced him to a total of ten years in prison. Appellant initiated an appeal. After this Court's review of the Anders2 brief filed by his counsel, the parties were ordered to file supplemental briefing to address whether Appellant's dual convictions for battery and aggravated battery violate the prohibition on double jeopardy found in the Fifth Amendment to the U.S. Constitution. See also Art. I, § 9, Fla. Const.
As an initial matter, we conclude that Appellant's failure to preserve the issue is no obstacle to relief, as double jeopardy violations are per se fundamental error. See Rosado v. State , 129 So. 3d 1104, 1107 n.1 (Fla. 5th DCA 2013) (citing State v. Johnson , 483 So. 2d 420, 422 (Fla. 1986) ). Appellant bears the burden on appeal to demonstrate that his dual convictions violate double jeopardy. See Mercer v. State , 219 So. 3d 936, 937 (Fla. 1st DCA 2017) (citing Sprouse v. State , 208 So. 3d 785, 787 (Fla. 1st DCA 2016) ). We conclude that because there was sufficient evidence at trial from which the jury could have convicted Appellant of both offenses based on distinct acts—his shove of Bird and the release and order for the dog attack—the dual convictions for battery and aggravated battery do not violate double jeopardy. See id.
In reaching this conclusion, we apply the three steps of the double jeopardy analysis: "(1) whether the convictions were based on an act or acts occurring during the same criminal transaction and/or episode; (2) whether the convictions were predicated on the same or distinct acts; and (3) if the convictions did not occur during separate episodes and were not based on distinct acts, whether the two convictions ‘survive a same elements test as defined by section 775.021, Florida Statutes, [(2014)], commonly referred to as the Blockburger analysis.’ " Mercer , 219 So. 3d at 937–38 (quoting Partch v. State , 43 So. 3d 758, 760 (Fla. 1st DCA 2010) ).
Here, as in Mercer , because the shove and instigation of the dog attack were upon the same victim, occurred at the same location, and occurred over the course of approximately one minute, we are persuaded by Appellant's argument that the two acts were part of a single criminal episode. See Mercer , 219 So. 3d at 938. However, viewing the evidence in the light most favorable to the jury's verdict, we also conclude there was sufficient evidence of two distinct acts from which the jury could have convicted Appellant of both offenses. See id. Furthermore, if the evidence supports convictions for two offenses based on distinct acts, it is not necessary to examine whether they would survive a same elements test under Blockburger . Id. ().
Because there was evidence from which the jury could find Appellant guilty of aggravated battery based on the release and order for the dog attack and battery for the shove, the dual convictions do not violate double jeopardy. Accordingly, we affirm the judgment and sentence.
AFFIRMED .
I concur in the majority opinion and agree that we must affirm based on Mercer v. State , 219 So. 3d 936 (Fla. 1st DCA 2017). See Sims v. State , 260 So. 3d 509, 514 (Fla. 1st DCA 2018) (). In Mercer , we held that there was no double jeopardy violation in allowing convictions for aggravated battery and manslaughter when the same victim was attacked closely in time first by a punch and then by a fatal kick.1 Mercer , 219 So. 3d at 938. We construed these different means of attack as distinct acts so that the separate convictions did not violate double jeopardy.2 Id. ; see also § 775.021(4), Fla. Stat. I also note that here the distinct acts were alleged in the information thereby avoiding any additional double jeopardy concern. See Lee v. State , 258 So. 3d 1297 (Fla. 2018).
Appellant filed a Motion for Rehearing, Rehearing En Banc, and for Certification of Conflict. We deny the motion for rehearing and rehearing en banc. We certify conflict with the decision of the Fourth District Court of Appeal in Olivard v. State , 831 So. 2d 823 (Fla. 4th DCA 2002).
1 The State reasoned that Mr. Trappman either intentionally and knowingly caused permanent injury or disfigurement to Sergeant Bird, or that he used a deadly weapon during the battery, the weapon being...
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