       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 29, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2535
                          Lower Tribunal No. 10-1742
                             ________________


                              Carlos Bertonatti,
                                    Appellant,

                                        vs.

                               State of Florida,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Bronwyn C.
Miller, Judge.

     Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public
Defender, for appellant.

     Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney
General, for appellee.


Before LAGOA, SALTER and SCALES, JJ.

      SALTER, J.
         Carlos Bertonatti appeals from a conviction and sentence after entering an

open plea of guilt under four counts of a five-count information: manslaughter

while driving under the influence (“DUI”) and the failure to render aid,1 two counts

of resisting a law enforcement officer without violence, and fleeing or attempting

to elude a law enforcement officer.2 Bertonatti maintains on appeal that the two

charges of resisting a law enforcement officer without violence occurred during a

single, ongoing criminal episode, such that they are barred by double jeopardy.

We affirm, concluding that Bertonatti’s plea colloquy and the record before the

trial court contain insufficient facts to determine, in a de novo review for

fundamental error, whether or not there was a sufficient temporal break or

relocation between the two incidents of resisting without violence. Our affirmance

is without prejudice to Bertonatti’s right to raise this issue in a timely post-

conviction motion.

         Facts and Procedural Background

         The charges arose from a tragic 2010 incident in which an automobile driven

by Bertonatti struck and killed a bicyclist on the Bear Cut Bridge en route to Key

Biscayne. The incident occurred shortly before 8:00 a.m. on a Sunday morning as

Bertonatti was returning from a nightclub in downtown Miami.
1   § 316.193(3)(c)3.b, Fla. Stat. (2010).
2 Count four of the information, leaving the scene of a vehicle crash involving
death, was abandoned by the State before the general guilty plea was entered.


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      After striking the victim, Bertonatti remained in his vehicle and fled,

dragging the victim’s bicycle for three miles under the grill of his car. When

detained by police shortly after the collision, Bertonatti’s breath smelled of

alcohol. An officer noted that Bertonatti’s face was flushed and his eyes were

watery.

      An officer from the DUI unit responded. The officer observed the same

signs of intoxication, and Bertonatti failed a series of roadside field sobriety tests.

At that point he was arrested. That officer then informed Bertonatti that the victim

had died and that Bertonatti would be required to provide a blood sample.

According to the arrest affidavit considered by the court as part of the plea

colloquy, Bertonatti refused to believe that the victim had died. He accused the

officer of lying to him.

      Bertonatti did not comply with the officer’s request “to stand and step out to

my police vehicle,” and had to be physically escorted to the vehicle. After being

transported to the Key Biscayne Firehouse, Bertonatti was told by two additional

officers that the victim had died, but Bertonatti refused to believe them as well. At

that point, Bertonatti was taken into the fire station to provide the blood sample.

Bertonatti refused again, and he physically resisted the officer’s efforts to have his

blood drawn. Ultimately, the officer and others strapped Bertonatti to a backboard

and forcibly extended Bertonatti’s arm to obtain the blood sample.3



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        Analysis

        The question presented by Bertonatti’s appeal is whether the two counts of

resisting a law enforcement officer without violence are barred by double jeopardy.

If so, the violation constitutes fundamental error and may be raised for the first

time on appeal. Corvo v. State, 916 So. 2d 44, 46 (Fla. 3d DCA 2005). The State

does not dispute that the plea was a general plea (rather than a negotiated plea) and

there was no express waiver of the alleged double jeopardy.           Long v. State, 678

So. 2d 925, 927 (Fla. 1st DCA 1996).

        In the information, the two charges of resisting a law enforcement officer

without violence are identical. The same law enforcement officer is identified in

each of the two counts. What is unclear from this record, however—and it is

unclear because Bertonatti did not raise or develop the issue below—is whether the

resistance was continuous and ongoing (a single instance of obstruction of a single

law enforcement officer),4 or whether there were two instances separated in time

and location. The question of whether two distinct criminal acts occurred, such

that “double jeopardy is not a concern,”5 is disputed in this case.
3 The blood analysis ultimately disclosed a blood alcohol level substantially in
excess of the statutory threshold for DUI.
4   See Beazley v. State, 148 So. 3d 552 (Fla. 1st DCA 2014).
5 State v. Paul, 934 So. 2d 1167, 1172 n.3 (Fla. 2006). The Supreme Court of
Florida receded from Paul in part in Valdes v. State, 3 So. 3d 1067 (Fla. 2009), on
grounds which are not pertinent to the present case.


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      The arrest affidavit was reviewed by the trial court and found to contain an

independent and sufficient factual basis for the entry of the plea of guilt for both of

the counts in question. As already noted, the arrest affidavit stated that Bertonatti

refused a request to step over to an officer’s vehicle and he had to be physically

escorted to an officer’s vehicle for transit to the fire station on Key Biscayne.

While Bertonatti was seated in that vehicle, two other officers explained to him

that the victim had died.     The affidavit next stated that Bertonatti “was then

transported to [the fire station]” where he was requested to provide a blood sample.

(Emphasis provided). When Bertonatti refused that request, he was taken to a fire

truck, strapped down to a backboard, and his arm was forcibly extended. The

blood sample was drawn despite his resistance.

      In describing the prospective plea to Bertonatti, the trial court confirmed that

“[t]he way that it would work procedurally as the parties have agreed upon is you

would be pleading guilty to relevant charges, which are not barred by double

jeopardy and then the case would thereafter be set for sixty days for a sentencing

hearing.” On this record, then, we find the State’s suggestion for an evidentiary

resolution of the issue persuasive:

      The State respectfully suggests the instant direct appeal be denied
      without prejudice for [Bertonatti] to raise this issue in a rule 3.850
      motion, where the State would have the opportunity at the trial court
      level, to develop the facts which may show possible breaks in time
      and location with greater clarity, as it had been deprived of that
      opportunity as this issue had not been raised below.


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      The convictions and sentences below are affirmed, without prejudice to

Bertonatti’s right to raise the double jeopardy issue in a timely post-conviction

motion under Florida Rule of Criminal Procedure 3.850.




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