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Allen v. State

District Court of Appeal of Florida, Fifth District.
Sep 12, 2014
146 So. 3d 1262 (Fla. Dist. Ct. App. 2014)

Summary

concluding that convictions for battery and domestic battery by strangulation based upon one act violated proscription against double jeopardy

Summary of this case from Pottle v. State

Opinion

No. 5D13–3160.

2014-09-12

Rodrick Newton ALLEN, Appellant, v. STATE of Florida, Appellee.

Appeal from the Circuit Court for Lake County, Mark A. Nacke, Judge. James S. Purdy, Public Defender, and Frank W. Scott, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.


Appeal from the Circuit Court for Lake County, Mark A. Nacke, Judge.
James S. Purdy, Public Defender, and Frank W. Scott, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.

Rodrick Newton Allen was convicted of trespass, battery, and domestic battery by strangulation. The victim was his former girlfriend. Allen contends that his convictions for battery and domestic battery by strangulation violate the prohibition against double jeopardy and that his conviction for battery must be reversed. The State concedes that the two convictions occurred at the same time and location, were committed against the same victim during the same episode, and no temporal break occurred between the commission of the two offenses. The State properly suggests that if the two convictions violate the proscription against double jeopardy, the less serious offense of battery should be the conviction and sentence that is vacated.

We conclude, based on the facts and circumstances of this case, that a double jeopardy violation has occurred, see Ramirez v. State, 113 So.3d 105 (Fla. 5th DCA 2013), and that the conviction for battery by strangulation should be affirmed and the lesser offense of battery should be reversed. We, therefore, remand this case to the trial court to vacate the battery conviction and sentence.

AFFIRMED in part; REVERSED in part; REMANDED. SAWAYA, ORFINGER, and BERGER, JJ., concur.


Summaries of

Allen v. State

District Court of Appeal of Florida, Fifth District.
Sep 12, 2014
146 So. 3d 1262 (Fla. Dist. Ct. App. 2014)

concluding that convictions for battery and domestic battery by strangulation based upon one act violated proscription against double jeopardy

Summary of this case from Pottle v. State
Case details for

Allen v. State

Case Details

Full title:Rodrick Newton ALLEN, Appellant, v. STATE of Florida, Appellee.

Court:District Court of Appeal of Florida, Fifth District.

Date published: Sep 12, 2014

Citations

146 So. 3d 1262 (Fla. Dist. Ct. App. 2014)

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Pottle v. State

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