Date: 10-05-2020

Case Style:

Case Number: 18-2143

Judge: Nelly N. Khouzam

Court: DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Plaintiff's Attorney: Ashley Moody, Attorney General,
Tallahassee, and Lindsay D. Turner,
Assistant Attorney General, Tampa

Defendant's Attorney:

Description: Richey, FL - Criminal Defense Attorney, attempted first degree murder and kidnapping

On May 18, 2006, Coleman was charged with the attempted first-degree
murder and kidnapping of his estranged wife. The offenses had allegedly occurred on
May 2, 2006. A jury found Coleman guilty of the lesser-included offense of attempted
second-degree murder and guilty of kidnapping as charged. On December 15, 2009, a
judgment was entered, and Coleman was sentenced to life in prison with a twenty-fiveyear mandatory minimum sentence. This court per curiam affirmed that judgment.
Coleman v. State, 63 So. 3d 760 (Fla. 2d DCA 2011).
Coleman later filed a petition alleging ineffective assistance of appellate
counsel, which this court granted and concluded entitled Coleman to a belated appeal.
Coleman v. State, 110 So. 3d 971, 971 (Fla. 2d DCA 2013). In the belated appeal, this
court reversed Coleman's conviction and sentence for attempted second-degree murder
and remanded for a new trial on that offense. Coleman, 157 So. 3d at 370. However,
on remand, Coleman was erroneously retried on the original charges, and this time the
jury found him guilty of attempted first-degree murder and kidnapping. He was
1Our prior opinion directed a retrial on the attempted murder charge only,
not the kidnapping charge. Coleman, 157 So. 3d at 370. Inexplicably, however,
Coleman was retried on both charges. Because our record does not reflect any
challenge below or on appeal to the propriety of the retrial on the kidnapping charge, we
affirm the judgment and sentence for that conviction without comment. But we caution
the circuit court clerk and representatives from the Department of Corrections that this
affirmance does not constitute a second conviction for kidnapping.
- 3 -
sentenced to a term of natural life with a twenty-five-year mandatory minimum
sentence.
On appeal, Coleman argues—and the State appropriately concedes—that
his conviction on retrial for attempted first-degree murder violates the prohibition against
double jeopardy because the original jury acquitted him of that charge when it convicted
him of the lesser-included offense of attempted second-degree murder. The First
District's decision in Middleton v. State, 131 So. 3d 815 (Fla. 1st DCA 2014), is
instructive. In Middleton, the "[a]ppellant assert[ed] his prior conviction for the lesser[-
]included offense of second-degree murder with a firearm was an implied acquittal on
the charged offense of first-degree murder with a firearm for purposes of double
jeopardy," and the First District agreed. Id. at 816. Accordingly, the court concluded
that "appellant's retrial and conviction for first-degree murder with a firearm violated the
constitutional prohibition against double jeopardy." Id. at 818.
Similarly, in the instant case, the original jury's verdict on the lesserincluded offense of attempted second-degree murder was an acquittal on the charge of
attempted first-degree murder. Therefore, it was a clear violation of double jeopardy
principles for Coleman to be retried on the attempted first-degree murder charge.
Rather, Coleman should have been retried on the charge of attempted second-degree
murder, as this court explicitly directed. Coleman, 157 So. 3d at 370 ("[W]e reverse Mr.
Coleman's conviction for attempted second-degree murder and remand for a new trial
on that offense."). We reverse and remand with directions that the trial court reduce
Coleman's conviction to the lesser-included offense of attempted second-degree murder
and resentence him accordingly.

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

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Defendant's Experts:

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