Do Dual Convictions for Single Crime of Attempted Homicide With Aggravated Battery Cause Double Jeopardy Violation ?
In Gordon v. State, 780 So. 2d 17 (Fla. 2001), the Court held that convictions as charged of attempted first-degree murder with a firearm and aggravated battery causing great bodily harm did not cause a double jeopardy violation.
In light of the almost identical counts of attempted murder charged for a single act in this case, which resulted in convictions of different lesser included offenses, it is clear that Gordon rests upon an error in legal analysis and is unacceptable in actual practice.
Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002) ("The doctrine of stare decisis bends where ... there has been an error in legal analysis.");
Brown v. State, 719 So. 2d 882, 890 (Fla. 1998) (Wells, J., dissenting) ("Intellectual honesty continues to demand that precedent be followed unless there has been a clear showing that the earlier decision was factually or legally erroneous or has not proven acceptable in actual practice.").
In Gordon, the court approved a district court decision affirming convictions of attempted first-degree murder, aggravated battery causing great bodily harm, and felony causing bodily injury for the defendant's act of shooting the victim during a robbery attempt. See 780 So. 2d at 18, 25.
Applying the exception in section 775.021(4)(b)(2), Florida Statutes (2004), to the statement of legislative preference that a defendant be convicted for each crime committed in a criminal episode, we adopted language from Justice Shaw's dissenting opinion in Carawan v. State, 515 So. 2d 161, 173 (Fla. 1987).
Justice Shaw stated in Carawan that "the primary evil of aggravated battery is that it inflicts physical injury on the victim, whereas the primary evil of attempted homicide is that it may inflict death." See id., quoted in Gordon, 780 So. 2d at 23.
The Court therefore concluded in Gordon that the crimes were "not 'degree variants' of the same underlying offense" for which dual convictions are unauthorized pursuant to section 775.021(4)(b)(2). 780 So. 2d at 25.