POWERS v. STATE (2020)

Ryan Todd Powers was convicted of four counts of exploiting his elderly parents in violation of section 825.103, Florida Statutes (2016). He raises five issues on appeal. We find no merit in four of those issues; however, we agree with Powers' double jeopardy argument and reverse on that issue.

Powers argues that the trial court erred in denying his motion to dismiss the Fourth Amended Information because two of the four counts constitute the same crime and therefore violate his constitutional right against double jeopardy. The State contends that this issue is not preserved for our review because Powers' motion to dismiss was directed at a prior version of the information. Although the record confirms the State's contention, this issue is reviewable because double jeopardy violations constitute fundamental error which may be raised for the first time on appeal. See Meythaler v. State, 175 So. 3d 918, 919 (Fla. 2d DCA 2015) (noting in part that a double jeopardy argument can be raised for the first time on appeal where the double jeopardy violation is apparent on the face of the record).

In determining whether multiple convictions based on the same conduct constitute a violation of double jeopardy, an appellate court may consider only the charging document, not the entire record. Lee v. State, 258 So. 3d 1297, 1303-04 (Fla. 2018); see also Morejon-Medina v. State, 277 So. 3d 1118, 1121 (Fla. 2d DCA 2019). Here, count one of the Fourth Amended Information charged Powers with exploitation of the elderly under section 825.103(1)(a), which requires proof of obtaining property from an elderly person with the intent to deprive the person of the asset. Count two charged exploitation of the elderly under section 825.103(1)(c), which requires proof that a person breached a fiduciary duty to an elderly person by making an unauthorized appropriation, sale, or transfer of property. Both counts involve the same time period and concern the same bank accounts. Because the information does not reflect that count one is based on conduct separate and distinct from count two, convictions for both offenses violate double jeopardy. See Lee, 258 So. 3d at 1303-04. Counts three and four are charged similarly and relate to the conveyance of the same real property. Thus, like counts one and two, these counts do not constitute separate crimes and violate double jeopardy. See id.

Accordingly, we vacate Powers' convictions and sentences on counts two and four and remand for proceedings consistent with this opinion. We affirm Powers' convictions and sentences on the remaining counts.

Affirmed in part, reversed in part, and remanded with directions.

KELLY, Judge.

KHOUZAM, C.J., and ATKINSON, J., Concur.