       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                           EDUARDO JULIAO,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D12-2873

                           [October 15, 2014]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Geoffrey Cohen, Judge; L.T. Case No. 10021479CF10A.

  Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   Eduardo Juliao appeals his conviction of aggravated battery, false
imprisonment, felony battery, tampering with a witness, and two counts
of battery. Juliao raises five issues on appeal, two of which argue double
jeopardy violations. We reverse on the two issues raising double jeopardy
violations. We affirm without discussion the trial court rulings on the
three other issues raised.

    The State charged Juliao with aggravated battery (deadly weapon),
domestic battery by strangulation, false imprisonment, felony battery
(great bodily harm), tampering with a witness, and domestic battery. His
wife was the victim of all the crimes charged. All of the offenses charged
against Juliao occurred in the apartment he shared with his wife and
during a single criminal episode. The jury found him guilty as charged on
all counts except domestic battery by strangulation, in which the jury
found him guilty of the lesser-included offense of battery. The trial court
sentenced him on each charge.
   The defendant raised no double jeopardy issues before the trial court.
However, “a violation of double jeopardy is a fundamental error which can
be raised for the first time on appeal.” Tannihill v. State, 848 So. 2d 442,
444 (Fla. 4th DCA 2003). Whether double jeopardy is violated is a legal
determination, reviewed de novo. State v. Paul, 934 So. 2d 1167, 1171
(Fla. 2006) (citing State v. Florida, 894 So. 2d 941, 945 (Fla. 2005)).

   Section 775.021(4)(a), Florida Statutes (2009), requires the use of the
Blockburger1 “same elements” test in determining if multiple convictions
and punishments are allowed for crimes committed during the same
criminal episode. Ramirez v. State, 113 So. 3d 105, 107 (Fla. 5th DCA
2013). If each offense “has an element that the other does not, the court
must then determine if one of the exceptions set forth in section
775.021(4)(b) applies.” Id. (citing Valdez v. State, 3 So. 3d 1067, 1070 (Fla.
2009)).

         Those exceptions are: (1) offenses which require identical
         elements of proof; (2) offenses which are degrees of the same
         offense as provided by statute; and (3) offenses which are
         lesser offenses the statutory elements of which are subsumed
         by the greater offense.

Id.

    The State concedes in this case that the felony battery conviction must
be vacated because all of the elements of felony battery (great bodily harm)
are subsumed in the elements of aggravated battery (deadly weapon), and
felony battery is a category one necessarily included offense of aggravated
battery. See §§ 784.041, 784.045, Fla. Stat. (2009); see also Fla. Std. Jury
Instr. (Crim.) 8.4, 8.5. The State also concedes that the convictions for
battery under counts two and six are based on the same conduct, requiring
identical elements of proof. Therefore, the conviction and sentence for one
of those counts must be vacated.

    We affirm Juliao’s convictions and sentences for aggravated battery,
false imprisonment, tampering with a witness, and one count of battery.
We reverse Juliao’s convictions and sentences for felony battery and the
other count of battery and remand the case for the trial court to vacate
those convictions and sentences.

   Affirmed in part and reversed in part, and remanded for further
proceedings.


1   Blockburger v. United States, 284 U.S. 299 (1932).

                                          2
TAYLOR and KLINGENSMITH, JJ., concur.

                          *        *      *

  Not final until disposition of timely filed motion for rehearing.




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