Summary
holding that under the facts of the case, the two convictions violated the prohibition against double jeopardy and constituted fundamental error that may be raised for the first time on appeal
Summary of this case from Hunsicker v. StateOpinion
No. 98-03255.
Opinion filed December 22, 1999.
Appeal from the Circuit Court for Polk County; Robert E. Pyle, Judge.
Gonzalo A. Gayoso, Miami, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.
Robert James Johnson appeals the multiple convictions imposed for resisting two police officers with violence during a single incident in which the officers were attempting to effectuate an arrest. The State concedes that pursuant to Wallace v. State, 724 So.2d 1176 (Fla. 1999), Johnson should only have been convicted of one count; however, the State argues that the issue was not preserved for appellate review.
Although counsel did not raise the issue at the trial court level, pursuant to Wallace Johnson could only be convicted of one count of resisting an officer with violence. Under the facts of this case, the two convictions violate the prohibition against double jeopardy and constitute fundamental error. See Jones v. State, 711 So.2d 633, 634 (Fla. 1st DCA 1998). Fundamental error may be raised for the first time on appeal. See Bain v. State, 730 So.2d 296, 300-301 (Fla. 2d DCA 1999).
Accordingly, we reverse and remand with directions that the conviction for one count of resisting an officer with violence be vacated. The remaining judgment and sentence is affirmed in all other respects.
Reversed and remanded with directions.
PATTERSON, C.J., and CASANUEVA, J., Concur.