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Double Jeopardy

The Fifth Amendment to the U.S. Constitution and article I, section 9 of the Florida Constitution both protect individuals from being twice put in jeopardy for the same offense. A double jeopardy claim based upon undisputed facts presents a pure question of law, which the appellate court will review de novo.

"The Double Jeopardy Clause presents no substantive limitation on the legislature's power to prescribe multiple punishments, but rather, seeks only to prevent courts either from allowing multiple prosecutions or from imposing multiple punishments for a single, legislatively defined offense." Id. (quoting Borges v. State, 415 So.2d 1265, 1267 (Fla. 1982).

As explained by the court in Valdes v. State, 3 So.3d 1067, 1076 (Fla. 2009), "there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal episode, as long as the Legislature intends such punishments.” (citing Hayes v. State, 803 So.2d 695, 699 (Fla. 2001).

Attorney for Double Jeopardy Defenses in Tampa, Florida

If you were several crimes and believe that the double jeopardy provisions of state and federal law apply, then contact an experienced criminal defense attorney at the Sammis Law Firm in Tampa, FL. We help clients fight criminal charges, both felonies and misdemeanors in the greater Tampa Bay area.

We provide a free and confidential consultation to discuss legal defenses that might apply to your case include double jeopardy, the statute of limitations, and speedy trial provisions of state and federal law.

Call 813-250-0500 to discuss your case.


Florida Statute Section 775.021(4)(a)-(b) and the Blockburger Test

The Florida Legislature codified the double jeopardy bar within section 775.021(4)(a)-(b), Florida Statutes (2015). Section 775.021(4)(a)-(b) is basically a recitation of the well-known Blockburger test. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Under the Blockburger test, when the "same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied ... is whether each provision requires proof of a fact which the other does not." Id.

The Blockburger test is a rule of statutory construction which “serves as a means of discerning [legislative] purpose” only where there is no “clear indication of contrary legislative intent." Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981).

The plain and ordinary language of section 775.021(4) unambiguously states that it is the legislature's intent “to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity ... to determine legislative intent.”

An individual who "commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively." § 775.021(4)(a) (emphasis added). "[O]ffenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial." Id.


Exceptions to the Intent to Punish Each Criminal Offense

The Florida Legislature has prescribed three, and only three, exceptions to the statute's aforementioned intent to punish for each criminal offense in the course of one criminal episode as explained in § 775.021(4)(b)(1)–(3). The Florida Legislature does not intend to allow separate sentencing for related offenses that:

  • require identical elements of proof;
  • are degrees of the same offense as provided by statute; or
  • are lesser offenses the statutory elements of which are subsumed by the greater offense.

"Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test,” as set forth in section 775.021(4). Rodriguez, 875 So.2d at 644 (quoting Gordon v. State, 780 So.2d 17, 19–20 (Fla. 2001)).


This article was last updated on Friday, May 18, 2018.