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Date: 05-19-2019

Case Style:


Case Number: 2D17-2437

Judge: J. Andrew "Drew" Atkinson


Plaintiff's Attorney: Ashley Moody, Attorney General, Tallahassee, and Katie Salemi-Ashby, Assistant Attorney General

Defendant's Attorney: Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender


On March 29, 2016, Jacobs entered the Palm River Laundromat, where the victim was employed, and asked if he could use the restroom. The victim said no because the restroom was meant for customers only. Jacobs responded, "I'll shoot you, bitch." Over the next several months, Jacobs entered the laundromat and threatened the victim. The victim then applied for an injunction against Jacobs. On July 29, 2016, at 10:00 a.m., Deputy Craig Martin served the injunction on Jacobs, explaining that the injunction prohibited Jacobs from contacting the victim at her place of employment and from going within 500 feet of the perimeter. After reading the injunction, Jacobs indicated he understood. That same day, while the victim was outside the laundromat, Jacobs threatened her from across the street. Jacobs was standing about sixty feet away from the victim. At 10:30 a.m., the victim flagged down Deputy Jared Lee and told him that Jacobs yelled at her from across the street. After Deputy Lee located Jacobs, Jacobs admitted that he knew about the injunction and that he yelled out, "Bitch, I'm coming to get you" while pounding on his chest with both fists. On August 18, 2016, Jacobs was charged with one count of aggravated stalking and two counts of violation of stalking injunction, one for being within 500 feet of the victim and the other for communicating with the victim. After a jury found him guilty as charged, Jacobs was sentenced to 28.8 months in prison on count one and to time served on the remaining counts. This appeal followed. A double jeopardy violation may be raised for the first time on appeal because it amounts to fundamental error. Eichelberger v. State, 949 So. 2d 358, 359
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(Fla. 2d DCA 2007) (citing Marinelli v. State, 706 So. 2d 1374, 1375 n.1 (Fla. 2d DCA 1998)). The double jeopardy clauses in the Florida and United States Constitutions protect individuals from being put in jeopardy more than once "for the same offense." Art. I, § 9, Fla. Const.; Amend. V, U.S. Const. ("[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]"); Valdes v. State, 3 So. 3d 1067, 1069 (Fla. 2009) ("[T]he Constitution prohibits subjecting a person to multiple prosecutions, convictions, and punishments for the same criminal offense."). "[W]here a defendant is convicted multiple times under the same statute for acts that occurred during the course of a single criminal episode, a 'distinct acts' test is used" to determine whether the convictions violate double jeopardy, but "where a defendant is convicted under multiple statutes for one act, the 'different elements' test applies." Graham v. State, 207 So. 3d 135, 141 (Fla. 2016) (discussing Blockburger v. United States, 284 U.S. 299 (1932)). Here, the "distinct acts" test applies because Jacobs was convicted multiple times under section 784.0487(4)(a), Florida Statutes (2016), for acts that occurred during a single criminal episode. Section 784.0487(4)(a) provides the following: A person who willfully violates an injunction for protection against stalking or cyberstalking issued pursuant to s. 784.0485, or a foreign protection order accorded full faith and credit pursuant to s. 741.315, by: 1. Going to, or being within 500 feet of, the petitioner's residence, school, place of employment, or a specified place frequented regularly by the petitioner and any named family members or individuals closely associated with the petitioner; 2. Committing an act of stalking against the petitioner;
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3. Committing any other violation of the injunction through an intentional unlawful threat, word, or act to do violence to the petitioner; 4. Telephoning, contacting, or otherwise communicating with the petitioner, directly or indirectly, unless the injunction specifically allows indirect contact through a third party; 5. Knowingly and intentionally coming within 100 feet of the petitioner's motor vehicle, whether or not that vehicle is occupied; 6. Defacing or destroying the petitioner's personal property, including the petitioner's motor vehicle; or 7. Refusing to surrender firearms or ammunition if ordered to do so by the court,
commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, except as provided in paragraph (b). (Emphasis added.) Pursuant to the "distinct acts" test, a single criminal impulse may be punished only once "no matter how long the action may continue," while separate, successive impulses may be punished separately "even though all unite in swelling a common stream of action." Graham, 207 So. 3d at 139 (quoting Blockburger, 284 U.S. at 302). In determining whether acts are "distinct," courts consider "factors such as whether there was (1) a temporal break between the acts, (2) intervening acts, (3) a change in location between the acts; and/or (4) a new criminal intent formed." Partch v. State, 43 So. 3d 758, 761 (Fla. 1st DCA 2010) (citing Hayes v. State, 803 So. 2d 695, 700 (Fla. 2001)). Jacobs' two violations of the injunction were two distinct criminal acts. See State v. Meshell, 2 So. 3d 132, 135 (Fla. 2009). By going to or being within 500
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feet of the victim's workplace, Jacobs committed "a criminal act distinctively different from" his contacting or otherwise communicating with the victim. See id. at 136 ("Because the oral sex described in Count 3 is a criminal act distinctively different from the vaginal penetration or union in Count 1, there is not a double jeopardy violation."); § 784.0487(4)(a)1., 4. (prohibiting the "[g]oing to, or being within 500 feet of" the victim's "place of employment" and the "[t]elephoning, contacting, or otherwise communicating with the" victim, respectively). As such, his convictions for each do not constitute double jeopardy for the same offense. The dissent contends that there was only one violation of the statute as the facts support a "single criminal impulse to violate the injunction." (Emphasis added.) However, there are several ways to violate the statute prohibiting violations of injunctions. See § 784.0487(4)(a)1.–7. And convictions for multiple violations of separately enumerated acts proscribed by the same statute do not violate double jeopardy—even if they are committed during the same criminal episode—as long as each is based on a "distinct criminal act[]." See Meshell, 2 So. 3d at 135 (finding commission of two of the various sex acts proscribed in section 800.04(4), Florida Statutes, during the same criminal episode constituted distinct acts such that double jeopardy did not bar punishment for each). "The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. If the latter, there can be but one penalty." Id. Here, it is the former. The language of section 784.0487(4) indicates that willful violation of an injunction can be "violated in multiple, alternative ways," each of which can be punished as separate offenses if they constitute distinct criminal acts. Meshell, 2 So. 3d at 135
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(quoting Saavedra v. State, 576 So. 2d 953, 956–57 (Fla. 1st DCA 1991)) (finding double jeopardy did not prohibit separate punishment for the two different ways the defendant committed lewd and lascivious battery in violation of section 800.04(4) during the same episode).1 The dissent identifies the lack of temporal break between the two violations (which arguably occurred simultaneously when Jacobs yelled at the victim from a distance of less than 500 feet of her workplace) as support for its conclusion that there was only one violation of the statute. However, even violations that occur simultaneously can be punished separately without violating the double jeopardy prohibition if each commission is of a separate character and type. See State v. Drawdy, 136 So. 3d 1209, 1214 (Fla. 2014) (finding double jeopardy did not prohibit convictions for both lewd or lascivious molestation and sexual battery after the defendant "touched the victim's breasts during vaginal penetration," each of which were
1The dissent dismisses the State's reliance on Meshell by explaining that the supreme court in Graham cleared up confusion created by the Meshell opinion, which had conflated the "distinct acts" and the "different elements" tests. But that does not mean that Meshell is inapposite. Graham did not impugn the outcome of Meshell, which supported its conclusion with the "distinct acts" test but also seemed to rely on the "different-elements" test. Graham merely pointed out that the latter test was inapplicable and unnecessary because both of the convictions in Meshell were for violations of the same statute. The holding of Meshell is not reliant on the "different elements" test and is very much applicable to this case: "Because the oral sex described in Count 3 is a criminal act distinctively different from the vaginal penetration or union in Count 1, there is not a double jeopardy violation." Meshell, 2 So. 3d at 136; cf. Graham, 207 So. 3d at 141 (affirming a district court that reached "the correct result" when it concluded that a "defendant's dual convictions under the lewd or lascivious molestation statute did not violate double jeopardy" even though the district court appeared to have "improperly utilize[d] aspects of the 'different elements' test" and noting that the district court "only needed to focus on whether each act that violated the statute was distinct"); Partch, 43 So. 3d at 762 ("Had distinct acts been found, the analysis would end here" without proceeding to the "same elements test.").
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offenses "of a separate character and type" constituting "distinct criminal acts" (quoting Meshell, 2 So. 3d at 136) (emphasis added)). It is not necessary for the two acts to be separated by a temporal break or a change in location in order for them to be considered distinct criminal acts. Nonetheless, such temporal and spatial separation arguably does exist in this case. The violation of subsection 1. occurred when Jacobs crossed the line demarcating where he was and was not allowed to be—within 500 feet of the victim's place of employment. The violation of subsection 4. occurred sometime thereafter when he began communicating with the victim when he was within sixty feet of the laundromat where she worked. The temporal break was whatever time it took for Jacobs to traverse the 440 feet to the point at which he began yelling at her. However, even if he had been communicating with the victim at the exact moment he first came within 500 feet of the victim's workplace (say, by use of a cell phone), that lack of temporal or spatial separation would not give rise to a double jeopardy violation. Each act is of a separate character and type, and each is born of a separate impulse. See Drawdy, 136 So. 3d at 1212 ("The differences in the character and type of crime proven are as important as the spatial and temporal aspects when considering whether multiple punishments are appropriate." (quoting Murphy v. State, 49 So. 3d 295, 298 (Fla. 5th DCA 2010))).2 In other words, the impulse to put one foot
2By the dissent's rationale, Jacobs could not be convicted separately for two offenses even if he had been lurking behind a dumpster in the parking lot of the victim's workplace while sending her text messages from his phone. An unavoidable consequence of the dissent's conclusion is that a defendant who commits any of the offenses enumerated in subsections 2. through 7. cannot also be convicted of violating subsection 1. if they were committed within 500 feet of the victim's workplace. The language of the constitution, which only protects against double jeopardy for the same
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in front of the other enough times (or keep one's foot on the accelerator long enough) to transport ones' self to within 500 feet of the victim's place of employment is separate and distinct from the impulse to open one's mouth and yell at her. See Graham, 207 So. 3d at 139 ("If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie." (quoting Blockburger, 284 U.S. at 302)). Jacobs chose to place himself within 500 feet of the victim's workplace. Then, he chose to communicate with her. Even if he was committing both violations at the exact same time, they are distinct acts separately proscribed by the statute under which he was convicted. Cf. Meshell, 2 So. 3d at 134 ("Distinct acts of sexual battery do not require a 'temporal break' between them to constitute separate crimes."). Accordingly, we affirm Jacobs' convictions and sentences for one count of aggravated stalking and two counts of violation of a stalking injunction.

Outcome: Affirmed

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