Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1883 _____________________________ DAVID WILLIAM TRAPPMAN, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Santa Rosa County. David Rimmer, Judge. February 10, 2021 M.K. THOMAS, J. David Trappman (Appellant) appeals his convictions for aggravated battery of a law enforcement officer, battery of a law enforcement officer, and resisting arrest. He argues that his conviction and sentencing on both battery charges violate double jeopardy. As explained herein, we disagree and affirm. Appellant was arrested after an incident at his home, when police appeared to execute an arrest warrant for his wife. Agitated with the police presence and their failure to immediately present a copy of the warrant, Appellant walked from his yard and entered his home while commenting that he hoped officers did not “get bitten by my dog.” Once officers entered the home, Appellant was instructed to proceed back outside with his two dogs while the warrant on his wife was executed. At trial, officers testified that Appellant initially complied; however, once outside, he began to rile up the dogs by banging their heads together and yelling at them. He eventually reappeared in the doorway of the home holding both dogs by the collars and refused the officers’ orders to go back outside. Sergeant Bird—the victim of both batteries—testified that when he approached, Appellant reached out and shoved him with one hand. Sergeant Bird responded by driving Appellant towards the front door with both hands. Appellant then let go of a dog while exclaiming “dog up, dog up.” The dog, a pit bull, leapt at Sergeant Bird and latched onto his leg, causing injury and subsequent scarring. The theory of the State’s case was that Appellant had initially committed battery by shoving Sergeant Bird, and that he separately committed aggravated battery by subsequently “siccing” the dog on Bird. 1 The jury apparently agreed, as Appellant was found guilty as charged. The trial court then adjudicated Appellant guilty on all charges and sentenced him to a total of ten years in prison. Appellant initiated an appeal. After this Court’s review of the Anders 2 brief filed by his counsel, the parties were ordered to file supplemental briefing to address whether Appellant’s dual convictions for battery and aggravated battery violate the prohibition on double jeopardy found in the Fifth Amendment to the U.S. Constitution. See also Art. I, § 9, Fla. Const. As an initial matter, we conclude that Appellant’s failure to preserve the issue is no obstacle to relief, as double jeopardy violations are per se fundamental error. See Rosado v. State, 129 So. 3d 1104, 1107 n.1 (Fla. 5th DCA 2013) (citing State v. Johnson, 483 So. 2d 420, 422 (Fla. 1986)). Appellant bears the burden on 1 The State reasoned that Mr. Trappman either intentionally and knowingly caused permanent injury or disfigurement to Sergeant Bird, or that he used a deadly weapon during the battery, the weapon being the dog itself. See § 784.045, Fla. Stat. (2017). 2 Anders v. California, 386 U.S. 738 (1967). 2 appeal to demonstrate that his dual convictions violate double jeopardy. See Mercer v. State, 219 So. 3d 936, 937 (Fla. 1st DCA 2017) (citing Sprouse v. State, 208 So. 3d 785, 787 (Fla. 1st DCA 2016)). We conclude that because there was sufficient evidence at trial from which the jury could have convicted Appellant of both offenses based on distinct acts—his shove of Bird and the release and order for the dog attack—the dual convictions for battery and aggravated battery do not violate double jeopardy. See id. In reaching this conclusion, we apply the three steps of the double jeopardy analysis: “(1) whether the convictions were based on an act or acts occurring during the same criminal transaction and/or episode; (2) whether the convictions were predicated on the same or distinct acts; and (3) if the convictions did not occur during separate episodes and were not based on distinct acts, whether the two convictions ‘survive a same elements test as defined by section 775.021, Florida Statutes, [(2014)], commonly referred to as the Blockburger analysis.’” Mercer, 219 So. 2d at 937–38 (quoting Partch v. State, 43 So. 3d 758, 760 (Fla. 1st DCA 2010)). Here, as in Mercer, because the shove and instigation of the dog attack were upon the same victim, occurred at the same location, and occurred over the course of approximately one minute, we are persuaded by Appellant’s argument that the two acts were part of a single criminal episode. See Mercer, 219 So. 2d at 938. However, viewing the evidence in the light most favorable to the jury's verdict, we also conclude there was sufficient evidence of two distinct acts from which the jury could have convicted Appellant of both offenses. See id. Furthermore, if the evidence supports convictions for two offenses based on distinct acts, it is not necessary to examine whether they would survive a same elements test under Blockburger. Id. (citing Partch, 43 So. 3d at 762 (“explaining that where dual convictions are based on distinct acts, it is unnecessary to apply the same elements test”)). Because there was evidence from which the jury could find Appellant guilty of aggravated battery based on the release and order for the dog attack and battery for the shove, the dual convictions do not violate double jeopardy. Accordingly, we affirm the judgment and sentence. 3 AFFIRMED. TANENBAUM, J., concurs; BILBREY, J., concurs with opinion. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ BILBREY, J., concurring. I concur in the majority opinion and agree that we must affirm based on Mercer v. State, 219 So. 3d 936 (Fla. 1st DCA 2017). See Sims v. State, 260 So. 3d 509, 514 (Fla. 1st DCA 2018) (“Each panel decision is binding on future panels, absent an intervening decision of a higher court or this court sitting en banc.”). In Mercer, we held that there was no double jeopardy violation in allowing convictions for aggravated battery and manslaughter when the same victim was attacked closely in time first by a punch and then by a fatal kick. 1 Mercer, 219 So. 2d at 938. We construed these different means of attack as distinct acts so that the separate convictions did not violate double jeopardy. 2 Id.; see also § 1 The fact that Mercer may have been a principal to the aggravated battery rather than the actual perpetrator does not distinguish our holding in Mercer from this case. It would violate double jeopardy for a defendant to be convicted both as the actual perpetrator and as a principal of the same crime. See Mays v. State, 198 So. 3d 35 (Fla. 2d DCA 2015); State v. Gunn, 381 So. 2d 1186 (Fla. 2d DCA 1980). 2 Our holding in Mercer arguably conflicts with cases from other districts holding that a conviction for aggravated battery and battery on the same victim in the same criminal episode violates double jeopardy. See, e.g., Olivard v. State, 831 So. 2d 823 (Fla. 4th DCA 2002) (holding that double jeopardy was violated when appellant was convicted of simple battery for striking the victim with an object and aggravated battery for biting off his ear in the 4 775.021(4), Fla. Stat. I also note that here the distinct acts were alleged in the information thereby avoiding any additional double jeopardy concern. See Lee v. State, 258 So. 3d 1297 (Fla. 2018). _____________________________ David William Trappman, pro se, Appellant. Jessica J. Yeary, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. same attack); Arnold v. State, 514 So. 2d 419 (Fla. 2d DCA 1987). But Mercer does seem consistent with State v. Meshell, 2 So. 3d 132 (Fla. 2009), and many other cases that allow multiple convictions for illegal sexual acts in the same episode on the same victim, so long as distinct acts by different anatomical combinations are alleged and proved. See also Graham v. State, 207 So. 3d 135 (Fla. 2016); State v. Drawdy, 136 So. 3d 1209 (Fla. 2014). In any event, Mercer is binding on this panel. 5