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Double Jeopardy 

The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections: 

  • It protects against a second prosecution for the same offense after acquittal; 
  • It protects against a second prosecution for the same offense after conviction; and 
  • It protects against multiple punishments for the same offense. 

What happens when the prosecutor charges a person with several separate counts for one what amounts to one criminal offense? When his happens, the criminal defense attorney must investigate whether double jeopardy would bar such a prosecution or punishment.

The attorney will then file the appropriate motions to motion to dismiss any counts that constitute double jeopardy. If the attorney at the trial level fails to raise the issue at trial and the issue is a fundamental error, then you can retain an attorney for the criminal appeal to address the issue on appeal.

The failure to raise a double jeopardy challenge to a conviction or sentence at trial is not fatal to the issue being considered by the appellate court when the issue constitutes fundamental error. See Romage v. State, 890 So.2d 550, 551 (Fla. 5th DCA 2005); see also Gisi v. State, 848 So.2d 1278, 1281 (Fla. 2d DCA 2003). 

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Determining Whether Separate Offenses Exist 

“The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17, 19 (Fla. 2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)).

When the statute contains no clear statement of legislative intent, the courts will employ the two-part Blockburger test as explained in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The Blockburger test is codified at section 775.021(4)(a), Florida Statutes, to determine whether separate offenses exist. 

The first part of the Blockburger test sets forth the “same elements test,” which prohibits courts from imposing multiple convictions for an act or acts that occur in one criminal episode if each offense does not contain at least one element distinct from the other offenses. 

The second part provides that even if each of the offenses has an element that the other does not, the court must determine if any of the exceptions set forth in section 775.021(4)(b) applies and precludes separate convictions and sentences. See § 775.021(4)(a), Fla. Stat. 

The Blockburger test applies, however, to crimes occurring in only “one criminal transaction or episode.” Thus, the court must first determine whether there was one criminal episode or multiple episodes. 

“In order to determine whether offenses occurred during a single criminal episode, courts look to whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a ‘temporal break’ between offenses.” Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004) (quoting Staley v. State, 829 So.2d 400, 401 (Fla. 2d DCA 2002)).

For instances, in Cabrera v. State, 884 So.2d 482, 484 (Fla. 5th DCA 2004), the court held that in order for crimes to be considered to have occurred in more than one criminal episode, there must be a sufficient temporal break between the two acts in order to allow the offender to reflect and form a new criminal intent for each offense.


Attorneys explain Double Jeopardy Challenges in Florida

One of our most important protections in any criminal case is the prohibition against double jeopardy. Double jeopardy issues can present themselves in a variety of different situation in both felony and misdemeanor cases. An experienced criminal defense attorney can investigate the facts of your case and apply important procedural rules to put you in the best position to fight the charges. If you have questions about Florida’s rules of criminal procedures and how they might apply to your criminal case, then contact the criminal defense attorneys at Meltzer & Bell. With offices in Fort Lauderdale and West Palm Beach, we represent clients throughout Broward and Palm Beach County, FL.

This article was last updated on Friday, October 28, 2016.

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