NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED RODRICK NEWTON ALLEN v. STATE OF FLORIDA

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District Court of Appeal of Florida, Fifth District.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED RODRICK NEWTON ALLEN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D13–3160

Decided: September 12, 2014

James S. Purdy, Public Defender, and Frank W. Scott, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

Rodrick Newton Allen was convicted of trespass, battery, and domestic battery by strangulation.   The victim was his former girlfriend.   Allen contends that his convictions for battery and domestic battery by strangulation violate the prohibition against double jeopardy and that his conviction for battery must be reversed.   The State concedes that the two convictions occurred at the same time and location, were committed against the same victim during the same episode, and no temporal break occurred between the commission of the two offenses.   The State properly suggests that if the two convictions violate the proscription against double jeopardy, the less serious offense of battery should be the conviction and sentence that is vacated.

We conclude, based on the facts and circumstances of this case, that a double jeopardy violation has occurred, see Ramirez v. State, 113 So.3d 105 (Fla. 5th DCA 2013), and that the conviction for battery by strangulation should be affirmed and the lesser offense of battery should be reversed.   We, therefore, remand this case to the trial court to vacate the battery conviction and sentence.

Affirmed in part;  Reversed in part;  Remanded.

SAWAYA, ORFINGER, and BERGER, JJ., concur.

Per Curiam.

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