Can Convictions of First Degree Murder and Aggravated Battery Both Stand When Arising Out of the Same Act ?

In Lukehart v. State, 776 So. 2d 906 (Fla. 2000), the defendant shook a baby and the baby thereafter died. the defendant in Lukehart argued that there was no felony separate from the homicide. In making this argument, Lukehart relied on Mills v. State, 476 So. 2d 172, 177 (Fla. 1985), which addressed the issue of whether convictions of first-degree murder and aggravated battery could both stand when arising out of the same act. In Mills, the court vacated the conviction of aggravated battery. See State v. Enmund, 476 So. 2d 165 (Fla. 1985), approved, Boler v. State, 678 So. 2d 319, 321 (Fla. 1996). In Blanco v. State, 706 So. 2d 7 (Fla. 1997), the Court specifically rejected the instant claim as to the murder in the course of a felony aggravator. This Court found in Mills that the two convictions could not stand and vacated the conviction for aggravated battery. While the Court rejected the analogy to Mills in Lukehart because the facts were distinguishable, Mills is applicable to the instant matter. In Mills, the defendant broke into a house in the middle of the night intending to steal something. When the homeowner awoke to investigate, the defendant shot and killed him. The defendant was charged with one count of felony murder, one count of burglary while armed with a firearm, and one count of aggravated battery with a firearm. This Court held that while the defendant could be found guilty of all three charges, it was not proper to convict him for aggravated battery and simultaneously for homicide as a result of one shotgun blast. Mills, 476 So. 2d. at 177. In that limited context, we concluded that the felonious conduct merged into one criminal act. Id. As the Court explained in Mills, "We do not believe that the legislature intended dual convictions for both homicide and the lethal act that caused the homicide without causing additional injury to another person or property." Id.