5D05-2568 Paul Newell v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-2568

Case Date: 07/31/2006

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2006

PAUL T. NEWELL, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed August 4, 2006 Appeal from the Circuit Court for Orange County, Julie H. O'Kane , Judge. James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D05-2568

PER CURIAM. The appellant, Paul Newell, asserts that the trial court violated the constitutional proscription against double jeopardy by convicting him of: (a) attempted voluntary manslaughter with a weapon, and aggravated battery with a deadly weapon; and (b) sexual battery in two different counts. We affirm.

The issue involving attempted voluntary manslaughter and aggravated battery is governed by the principles announced in State v. Florida, 894 So. 2d 941 (Fla. 2005). The facts of the present case reflect that while the two offenses arose out of the same general act, they are separate offenses because they do not require identical elements of proof, are not degree variants of the same core offense, and aggravated battery with a deadly weapon is not always subsumed within the offense of attempted voluntary manslaughter. See

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