Resisting with Violence Plus Resisting without Violence Equals Double Jeopardy Violation?

Sometimes the State will charge a person with two offenses for resisting an officer – with AND without violence. Most times the trial prosecutor will work out the case with a plea to one while dropping the other – avoiding any double jeopardy issues. But when there is a plea to both or a jury returns guilty verdicts as to both, there is serious potential for a double jeopardy (5th Amendment) violation.

The Double Jeopardy Clause protects criminal defendants from multiple convictions and punishments for the same offense arising out of the same transaction or occurrence. McKinney v. State, 51 So.3d 645 (Fla. 1st DCA 2011).

In Partch v. State, 43 So.3d 758 (Fla. 1st DCA 2010), the court developed a three-prong test to determine whether multiple convictions violate double jeopardy: (1) determine if the charges were based on acts that occurred within the same criminal episode; (2) determine if the charges were predicated on distinct acts; and (3) if not predicated on distinct acts and occurred within the same criminal episode, determine if the charged offenses survive the same elements test as expounded in Blockburger v. U.S., 284 U.S. 299 (1932).

The Blockburger Test (found in F.S. 775.021(4)(a)) says that if each charged offense has the element that the other does not, then there is no double jeopardy violation. There are 3 exceptions to the rule, however:

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.

Resisting an officer without violence does not have an element other than those contained in resisting an officer with violence. Thus, there is a double jeopardy violation according to the test in Blockburger. However, even if it did pass the Blockburger test, it would still fall under exceptions 2 and 3 above because resisting without can be said to be a lesser degree offense of resisting with (exception #2) or, as the greater offense, resisting with can be said to subsume resisting without (exception #3).

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