Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-947 _____________________________ JESSE ELI BAKER, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Angela M. Cox, Judge. July 1, 2021 PER CURIAM. In 2015, the State charged Jesse Baker with two counts of armed robbery based on a single taking of $202 from a desk at a food-delivery-service office. Each count corresponded to one of the two individuals inside the office at the time of the robbery. A jury found him guilty on both counts, and he was adjudicated and sentenced accordingly. The trial court gave him twenty-five years in prison on the first count and ten years on the second, with the two terms to run concurrently. Both sentences carried a ten-year mandatory minimum for Baker’s possession of a firearm during the robbery. Baker appeals. 1 1 We have here Baker’s second trip on appeal in connection with the robbery. In his first appeal, this court reversed and sent the case back for the trial court to apply the proper standard to Undeterred by his counsel’s brief stating that there was no good-faith argument to be made in this appeal, Baker filed his own brief and contends that his two convictions for the same taking at the store violated his right against being put in double jeopardy. We ordered supplemental briefing on the issue. Baker’s appellate counsel and the State both now agree with Baker, and so do we. There is no gainsaying that neither the national government nor this state can put one of its citizens twice in jeopardy for the same crime. Art. I, § 9, Fla. Const.; U.S. Const. amend. V. This means that the State cannot obtain “more than one punishment for a single commission of a legislatively defined offense.” Hayes v. State, 803 So. 2d 695, 699 (Fla. 2001) (quotation omitted); see also Brown v. Ohio, 432 U.S. 161, 165 (1977) (noting that the role of the double jeopardy clause “is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense”). Before there can be a double- jeopardy violation, though, the “two or more charged offenses must have the same elements.” Gaber v. State, 684 So. 2d 189, 192 (Fla. 1996). This is what Baker asserts happened with his robbery convictions. The Legislature defines the offense of robbery in the following terms: [T]he taking of money or other property . . . from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear. consideration of Baker’s motion for a new trial. See Baker v. State, 262 So. 3d 241 (Fla. 1st DCA 2018). On remand, the trial court concluded that the verdict as to the two charges was not against the weight of the evidence, so it again denied the motion. The trial court rendered a new judgment and a sentencing order, which are now before us for review. The new sentences are the same as the first ones. 2 § 812.13(1), Fla. Stat. (emphasis supplied). Under this statute, there can be multiple robbery convictions involving the same owner or custodian or arising from the same criminal episode. To avoid a double-jeopardy problem, though, each conviction must be based on a separate taking. “The rule appears to be well settled that where property is stolen from the same owner from the same place by a series of acts, if each taking is a result of a separate independent impulse it is a separate crime.” Green v. State, 183 So. 728, 729 (Fla. 1938). “Actual ownership of the money obtained is not dispositive of the question of whether multiple robberies have been committed. What is dispositive is whether there have been successive and distinct forceful takings with a separate and independent intent for each transaction.” Brown v. State, 430 So. 2d 446, 447 (Fla. 1983). In this case, to be sure, there were two victims. There were two persons in the office at the time of the robbery, and Baker and his co-perpetrator bound them and forced them to lie down on the floor at gunpoint. However, Baker’s fellow offender swiped only a single wad of money from a desk in the back of the office. Neither robber took anything from the victims themselves, and neither took anything from elsewhere in the office. The robbery episode involved a singular taking, so there was but one legislatively defined offense. Cf. id. at 447 (approving affirmance of dual robbery convictions based on single episode because money was taken from two separate cash registers that were controlled by separate employees). To convict and sentence Baker twice for this robbery under these circumstances, then, is to subject him to double jeopardy. Despite Baker’s not having preserved this point in the trial court, the error is fundamental and requires reversal. See State v. Johnson, 483 So. 2d 420, 421 (Fla. 1986); see also § 924.051(3), Fla. Stat. (authorizing reversal on an unpreserved error that is nonetheless fundamental). 2 On remand, the trial court shall 2 Baker did not raise this particular double jeopardy argument in his first appeal. 3 adjudicate Baker guilty of one of the two robbery counts in the information, based on input from the State, and impose a sentence for that one conviction. 3 Judgment REVERSED. Sentencing order VACATED. REMANDED. OSTERHAUS, JAY, and TANENBAUM, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Barbara Busharis, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee. 3 Both Baker and the State agree that we should remand for resentencing. 4