Avila v. State

District Court of Appeal of Florida

Avila v. State

9 So. 3d 778, 2009 Fla. App. LEXIS 7432, 2009 WL 1563437

CourtDistrict Court of Appeal of Florida

DecidedJune 5, 2009

DocketNo. 2D08-1970

StatusPublished

This text of 9 So. 3d 778 (Avila v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Avila v. State, 9 So. 3d 778, 2009 Fla. App. LEXIS 7432, 2009 WL 1563437 (Fla. Ct. App. 2009).

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Opinion

NORTHCUTT, Chief Judge.

In 2001, Raymond Avila was convicted of burglary with a battery and the additional offense of battery as a lesser included offense of sexual battery. He was sentenced to twenty-five years in prison for the burglary and to a concurrent 364 days for the battery. He filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and he appeals the denial of relief after an eviden-tiary hearing. We reverse the denial of relief on a single claim and affirm on the remaining claims without further discussion.

[779]*779Avila argues that a double jeopardy violation occurred when he was convicted and sentenced for both burglary with a battery and battery. Although the prosecutor below attempted to avoid this conclusion by pointing out that Avila was charged with sexual battery and only convicted of battery as a lesser included offense of that charge, the State on appeal concedes that Avila may have a valid claim. We agree that if only a single battery occurred, the protection against double jeopardy was violated by convictions for both burglary with battery and battery. See Watson v. State, 646 So.2d 288 (Fla. 2d DCA 1994); see also Bradley v. State, 540 So.2d 185 (Fla. 5th DCA 1989). Accordingly, we reverse the denial of relief on this claim. On remand, the court may again deny relief if it can attach portions of the record conclusively showing that multiple batteries occurred. Failing that, the postconviction court must vacate the battery conviction.

Affirmed in part, reversed in part, and remanded with directions.

WHATLEY and VILLANTI, JJ., Concur.

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NORTHCUTT, Chief Judge.

In 2001, Raymond Avila was convicted of burglary with a battery and the additional offense of battery as a lesser included offense of sexual battery. He was sentenced to twenty-five years in prison for the burglary and to a concurrent 364 days for the battery. He filed a timely motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and he appeals the denial of relief after an eviden-tiary hearing. We reverse the denial of relief on a single claim and affirm on the remaining claims without further discussion.

[779]*779Avila argues that a double jeopardy violation occurred when he was convicted and sentenced for both burglary with a battery and battery. Although the prosecutor below attempted to avoid this conclusion by pointing out that Avila was charged with sexual battery and only convicted of battery as a lesser included offense of that charge, the State on appeal concedes that Avila may have a valid claim. We agree that if only a single battery occurred, the protection against double jeopardy was violated by convictions for both burglary with battery and battery. See Watson v. State, 646 So.2d 288 (Fla. 2d DCA 1994); see also Bradley v. State, 540 So.2d 185 (Fla. 5th DCA 1989). Accordingly, we reverse the denial of relief on this claim. On remand, the court may again deny relief if it can attach portions of the record conclusively showing that multiple batteries occurred. Failing that, the postconviction court must vacate the battery conviction.

Affirmed in part, reversed in part, and remanded with directions.

WHATLEY and VILLANTI, JJ., Concur.

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9 So. 3d 778, 2009 Fla. App. LEXIS 7432, 2009 WL 1563437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avila-v-state-fladistctapp-2009.

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