David William Trappman v. State of Florida

Supreme Court of Florida
____________

No. SC2021-1479
____________

DAVID WILLIAM TRAPPMAN,
Petitioner,

vs.

STATE OF FLORIDA,
Respondent.

February 8, 2024

CANADY, J.

Petitioner David William Trappman was not cooperative when

law enforcement officers came to his home to arrest his wife. As the

officers were attempting to make the arrest, Trappman shoved an

officer. After the officer shoved back, Trappman responded by

siccing a pit bull on the officer. For shoving the officer, Trappman

was convicted of battery of a law enforcement officer. For siccing

the dog on the officer, with the resulting bite and scarring of the

officer’s leg, Trappman was convicted of aggravated battery of a law

enforcement officer.
In Trappman’s appeal, the First District Court of Appeal

rejected an argument that the protection against double jeopardy

precluded his dual convictions and sentences. Trappman v. State,

325 So. 3d 944, 945 (Fla. 1st DCA 2021). The court concluded that

although the two offenses occurred in one criminal episode, they

were based on distinct acts for which multiple punishments could

be imposed without a double jeopardy violation. Id. at 946.

Recognizing that the decision of the Fourth District Court of Appeal

in Olivard v. State, 831 So. 2d 823 (Fla. 4th DCA 2002), involved a

similar fact pattern but reached a different result on the double

jeopardy issue, the First District certified that its decision was in

direct conflict with Olivard. Trappman, 325 So. 3d at 947. Based

on the certified conflict, we decided to exercise jurisdiction. See art.

V, § 3(b)(4), Fla. Const.

Because we agree with the First District that the shoving of the

officer and the subsequent siccing of the dog on the officer were

distinct criminal acts for which separate punishments were

properly imposed, we approve the conclusion in Trappman that no

double jeopardy violation occurred. And we disapprove Olivard as

inconsistent with our reasoning here.

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In explaining our decision, we first review the facts of the

incident that resulted in the charges against Trappman and the

First District’s disposition of Trappman’s appeal and compare that

decision with the conflict decision. We then examine double

jeopardy principles, focusing particularly on the multiple-

punishment analytical framework set forth in the United States

Supreme Court’s landmark decision of Blockburger v. United States,

284 U.S. 299 (1932). Next we turn to the Blockburger-inspired rule

of construction regarding multiple punishments contained in

section 775.021(4), Florida Statutes (2017). Finally, we consider

the arguments of the parties on the conflict issue and then analyze

Trappman’s conduct, concluding that separate impulses resulting

in distinct criminal acts justify Trappman’s dual convictions and

sentences.

I.

As explained by the First District, officers arrived at

Trappman’s home “to execute an arrest warrant for his wife.”

Trappman, 325 So. 3d at 945.

Once officers entered the home, [Trappman] was
instructed to proceed back outside with his two dogs
while the warrant on his wife was executed. At trial,

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officers testified that [Trappman] initially complied;
however, once outside, he began to rile up the dogs by
banging their heads together and yelling at them. He
eventually reappeared in the doorway of the home
holding both dogs by the collars and refused the officers’
orders to go back outside. Sergeant Bird—the victim of
both batteries—testified that when he approached,
[Trappman] reached out and shoved him with one hand.
Sergeant Bird responded by driving [Trappman] towards
the front door with both hands. [Trappman] then let go
of a dog while exclaiming “dog up, dog up.” The dog, a
pit bull, leapt at Sergeant Bird and latched onto his leg,
causing injury and subsequent scarring.

Id. Trappman was charged with battery of a law enforcement officer

and aggravated battery of a law enforcement officer.1

“The theory of the State’s case was that [Trappman] had

initially committed battery by shoving Sergeant Bird, and that he

separately committed aggravated battery by subsequently ‘siccing’

the dog on Bird.” Id. Agreeing with the State, the First District held

that Trappman’s acts of shoving a police officer and then siccing a

dog on the officer were “distinct acts” rendering double jeopardy

inapplicable, notwithstanding that the two acts “occurred over the

1. Trappman was also charged with resisting arrest. That
charge is not at issue.

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course of approximately one minute” and “were part of a single

criminal episode.” Id. at 946.

The First District certified conflict with the decision of the

Fourth District in Olivard. There, the defendant was convicted of

battery (for hitting the victim) and aggravated battery (for biting off

the victim’s ear). 831 So. 2d at 824. The Fourth District reversed

the lesser conviction, reasoning that the defendant’s “actions were

within the course of one continuous episode attacking [the victim].”

Id. The Fourth District, which did not discuss the notion of

“distinct acts,” viewed the defendant’s conduct as “a single act,” and

concluded that dual punishments for the greater offense of

aggravated battery and the lesser included offense of battery could

not be imposed for such a “single act.” Id.

II.

The Fifth Amendment’s Double Jeopardy Clause provides that

no person shall “be subject for the same offence to be twice put in

jeopardy of life or limb.” Amend. V, U.S. Const. The protections of

this federal constitutional provision are applicable to the States

through the Fourteenth Amendment. Benton v. Maryland, 395 U.S.

784, 787 (1969). In any event, the Florida Constitution contains a

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similar provision, which states that no person shall “be twice put in

jeopardy for the same offense.” Art. I, § 9, Fla. Const. We have said

“that our own double jeopardy clause in article I, section 9, Florida

Constitution, which has endured in this state with only minor

changes since the constitution of 1845, was intended to mirror [the]

intention of those who framed the double jeopardy clause of the

fifth amendment.” Carawan v. State, 515 So. 2d 161, 164 (Fla.

1987); see also Trotter v. State, 825 So. 2d 362, 365 (Fla. 2002)

(“The scope of the Double Jeopardy Clause is the same in both the

federal and Florida Constitutions.”).

The decisions of the United States Supreme Court “have

recognized three separate guarantees embodied in the Double

Jeopardy Clause: It protects against a second prosecution for the

same offense after acquittal, against a second prosecution for the

same offense after conviction, and against multiple punishments for

the same offense.” Justs. of Bos. Mun. Ct. v. Lydon, 466 U.S. 294,

306-07 (1984) (citing Illinois v. Vitale, 447 U.S. 410, 415 (1980)).2

2. Mistrials can also trigger application of the double jeopardy
clause in some circumstances. See United States v. Scott, 437 U.S.
82 (1978).

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In applying each of the three guarantees, the essential

determination is whether one charge against a defendant is for the

“same offense” as another charge against that defendant. And for

double jeopardy protection to apply, most succinctly put, the

offenses must be “the same in law and in fact.” Burton v. United

States, 202 U.S. 344, 380 (1906) (quoting Commonwealth v. Roby,

12 Pick. 496, 502 (Mass. 1832)); see also Boswell v. State, 20 Fla.

869, 875 (1884) (“In considering the identity of the offence, it must

appear . . . that the offence charged in both cases was the same in

law and in fact.” (quoting Roby, 12 Pick. at 509)).

A.

Here, the third guarantee—“against multiple punishments for

the same offense”—is at issue. A framework for analyzing such

multiple-punishment double jeopardy questions is laid out in

Blockburger, which addresses the distinct questions of how to

determine both whether offenses are the same “in fact” and whether

they are the same “in law.” The first inquiry addresses whether

conduct transgressing a single prohibition is subject to multiple

punishments, and the second is aimed at determining whether a

single act transgressing more than one prohibition may be

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punished separately based on the violation of the separate

prohibitions.

Under Blockburger’s reasoning, multiple punishments for

violations of a single criminal prohibition are permissible if the

prohibition is aimed at singular acts—as opposed to a continuous

offense or course of criminal conduct—and the defendant’s conduct

involves separate acts stemming from “successive impulses.” See

Blockburger, 284 U.S. at 302 (quoting Wharton’s Criminal Law

(11th Ed.) § 34). 3 And multiple punishments for a single act that

violates separate criminal prohibitions are permissible if the

separate prohibitions each require proof of a fact not required to

establish a violation of the other prohibition. See id. at 304.

In Blockburger, the defendant was convicted of three counts

related to the illegal sale of morphine hydrochloride to the same

purchaser. Id. at 301. One “count charged a sale on a specified

day of ten grains of the drug not in or from the original stamped

package,” while another “count charged a sale on the following day

3. Blockburger does not address when multiple punishments
may be imposed for a singular act that violates a single prohibition
but affects multiple victims.

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of eight grains of the drug not in or from the original stamped

package.” Id. The final “count charged the latter sale also as

having been made not in pursuance of a written order of the

purchaser as required by the statute.” Id. On review, the

defendant first contended that the conduct on which the first two

counts were predicated “constitute[d] a single offense” based on the

facts. Id. Second, the defendant also argued that the final count—

for violating the separate statutory prohibition concerning the

absence of a written order—as a matter of law “constitute[d] but one

offense” with the later of the other counts, since the two counts

were based on the same conduct. Id. The Court rejected both

arguments.

Concerning the first argument, the Court concluded that the

two sales “were distinct and separate sales made at different times.”

Id. This was so even though payment for the drug in the second

transaction—to be delivered the day after the drug in the first

transaction was delivered—was made “shortly after delivery of the

drug” in the first transaction. Id. The Court reasoned that “the first

sale had been consummated, and the payment for the additional

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drug, however closely following, was the initiation of a separate and

distinct sale completed by its delivery.” Id.

The Court pointed to the well-established distinction between

offenses that are continuous in character and offenses that can be

committed by a singular act—that is, “uno ictu” or with one blow—

concluding that the statute under examination could be

transgressed by an “isolated act.” Id. at 302 (quoting Ex parte

Snow, 120 U.S. 274, 281, 286 (1887)). “Each of several successive

sales constitutes a distinct offense, however closely they may follow

each other.” Id. The Court elaborated by highlighting the

significance of “successive impulses” discussed in Wharton’s

Criminal Law: “[W]hen the impulse is single, but one indictment

lies, no matter how long the action may continue. If successive

impulses are separately given, even though all unite in swelling a

common stream of action, separate indictments lie.” Id. (quoting

Wharton’s Criminal Law (11th Ed.) § 34).

On the defendant’s second contention, comparing the offense

of sale “not in or from the original stamped package” with the

offense of sale “not in pursuance of a written order,” the Court

observed that “[e]ach of the offenses created requires proof of a

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different element.” Id. at 304. The Court stated this as the

governing rule: “[W]here the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied

to determine whether there are two offenses or only one is whether

each provision requires proof of a fact which the other does not.”

Id. Under that test, the defendant’s argument was unavailing

because “although both sections were violated by the one sale, two

offenses were committed.” Id.

We have recognized the importance of the two different lines of

analysis in Blockburger and that conflating those distinct lines of

analysis is erroneous. Rejecting case law that suggested such a

conflated analysis, in Graham v. State, 207 So. 3d 135 (Fla. 2016),

we clarified

that Blockburger ultimately provides courts with two tests
to apply: (1) where the 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, but (2) where a defendant is convicted
under multiple statutes for one act, the “different
elements” test applies.

Id. at 141. Regarding “the Blockburger ‘distinct acts’ analysis,” we

recognized that acts are distinct when they “indicate[] a different

impulse to violate the statute.” Id. at 139. We also accordingly

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acknowledged “that under Blockburger, a defendant can also

commit a number of sequential acts within a single criminal

episode, and each distinct act may be punished under the same

statute.” Id. at 140.

B.

“With respect to cumulative sentences imposed in a single

trial, the Double Jeopardy Clause does no more than prevent the

sentencing court from prescribing greater punishment than the

legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983).

The protection against multiple punishments for the same offense

thus

is designed to ensure that the sentencing discretion of
courts is confined to the limits established by the
legislature. Because the substantive power to prescribe
crimes and determine punishments is vested with the
legislature, the question under the Double Jeopardy
Clause whether punishments are “multiple” is essentially
one of legislative intent.

Ohio v. Johnson, 467 U.S. 493, 499 (1984) (citations omitted). In

line with our law deciding that the state and federal double jeopardy

protections have the same scope, we have echoed and applied this

understanding of the limitations on multiple punishments as

focused on legislative authorization. See, e.g., Valdes v. State, 3 So.

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3d 1067, 1069 (Fla. 2009) (discussing relevant Supreme Court case

law and stating that “there is no constitutional prohibition against

multiple punishments for different offenses arising out of the same

criminal transaction as long as the Legislature intends to authorize

separate punishments”).

The decision in Blockburger—which notably makes no mention

of the constitutional protection against double jeopardy—addresses

how to properly interpret and apply federal criminal laws to insure

that multiple punishments are not imposed when unauthorized by

Congress. “In the federal courts the [Blockburger] test . . . ordinarily

determines whether the crimes are indeed separate and whether

cumulative punishments may be imposed.” Johnson, 467 U.S. at

499 n.8. But “the Blockburger test does not necessarily control the

inquiry into the intent of a state legislature. Even if the crimes are

the same under Blockburger, if it is evident that a state legislature

intended to authorize cumulative punishments, a court’s inquiry is

at an end.” Id.

III.

In Florida, the legislature has acted to provide very specific

guidance concerning the general rules for determining when

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separate punishments are properly applied for separate offenses

that are committed during one criminal transaction or episode. The

legislative rules were adopted against the backdrop of Blockburger

and Florida’s prior adherence to the “single transaction rule,” under

which, as we held in Simmons v. State, 10 So. 2d 436, 439 (Fla.

1942), “there should be one punishment where . . . the various

counts of the information presented different aspects of the same

criminal transaction and . . . the court should impose a sentence on

the count which charges the higher grade or degree of the offense.”

From its inception in 1976, section 775.021(4) “abrogated the single

transaction rule.” Borges v. State, 415 So. 2d 1265, 1266 (Fla.

1982). The statutory rules thus embody a broad purpose “to

convict and sentence for each criminal offense committed”—even

when committed in the course of a single transaction or episode—

and a departure from principles of lenity as previously understood.

These “rules of construction” are set forth in section

775.021(4):

(4)(a) Whoever, in the course of one criminal
transaction or episode, commits an act or acts which
constitute one or more separate criminal offenses, upon
conviction and adjudication of guilt, shall be sentenced
separately for each criminal offense; and the sentencing

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judge may order the sentences to be served concurrently
or consecutively. For the purposes of this subsection,
offenses are separate if each offense requires proof of an
element that the other does not, without regard to the
accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and
sentence for each criminal offense committed in the
course of one criminal episode or transaction and not to
allow the principle of lenity as set forth in subsection (1)
to determine legislative intent. Exceptions to this rule of
construction are:
1. Offenses which require identical elements of
proof.
2. Offenses which are degrees of the same offense
as provided by statute.
3. Offenses which are lesser offenses the statutory
elements of which are subsumed by the greater offense.

§ 775.021(4), Fla. Stat.

The “principle of lenity” in subsection (1) requires that the

provisions of the Florida Criminal Code “and offenses defined by

other statutes shall be strictly construed,” so that “when the

language is susceptible of differing constructions, it shall be

construed most favorably to the accused.” § 775.021(1), Fla. Stat.

But subsection (4) makes clear that this rule of lenity has no

application to matters within the scope of subsection (4), subject

only to the specific exceptions set forth in subsection (4)(b)1.-3.

We have acknowledged that “the Blockburger same-elements

test”—which is sometimes characterized as a different elements

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test—is “codified” in subsection (4). State v. Marsh, 308 So. 3d 59,

61 (Fla. 2020); see also State v. Maxwell, 682 So. 2d 83, 84 (Fla.

1996) (“Section 775.021(4) is a codification of the Blockburger test,

sometimes referred to as the same-elements test, which inquires

whether each offense contains an element not contained in the

other; if not, they are the same offense and double jeopardy bars

subsequent punishment or prosecution.”). The Blockburger same-

elements test is reflected in the text of the last sentence of

subsection (4)(a), which provides that “offenses are separate if each

offense requires proof of an element that the other does not, without

regard to the accusatory pleading or the proof adduced at trial.” It

is also reflected and refined in the exceptions of subsection (4)(b)

from the general rule that the intent of the legislature is “to convict

and sentence for each criminal offense committed in the course of

one criminal episode or transaction.”

Under the statute—understood against the backdrop of

Blockburger—multiple punishments for a criminal act that violates

multiple criminal provisions are precluded if the provisions fall

outside the ambit of the last sentence of subsection (4)(a) or within

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the exceptions of subsection (4)(b). And nothing in the statute is

inconsistent with Blockburger’s distinct acts test.

IV.

Trappman’s core argument is that the two offenses of which he

was convicted were “committed during one continuous criminal

episode with one criminal intent” and multiple punishments were

precluded under the exception in section 775.021(4)(b)3. because

the statutory elements of the lesser offense (battery of a law

enforcement officer) were subsumed by the greater offense

(aggravated battery of a law enforcement officer). 4 In support of his

position, Trappman cites Olivard—the conflict case—and various

other cases, relying principally on our decision in Hayes v. State,

803 So. 2d 695 (Fla. 2001), in which we said that in determining

whether criminal conduct involves distinct acts rather than “one

continuous criminal act with a single criminal intent,” “courts

4. At oral argument, counsel for Trappman argued that this
Court need not reach the issue of distinct acts and can instead
resolve this case based on certain alleged deficiencies in the
charging document. But Trappman never raised this charging-
document issue below or in his initial brief to this Court. We do not
now consider this issue that was not properly preserved or
presented.

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should look to whether there was a separation of time, place, or

circumstances.” Id. at 704.

The State counters that “[b]ecause Petitioner’s convictions

were based on two separate distinct acts which were based upon

separate impulses or intents, a Blockburger [different elements]

analysis is not triggered.” The State also points us to Graham,

where—as previously mentioned—this Court “clarifie[d]” its reading

of Blockburger and distinguished between the “distinct acts” test

and the “different elements” test and—following Blockburger—

determined that acts are distinct when they are based on separate

impulses. Graham, 207 So. 3d at 139, 141. According to the State,

Trappman’s conduct in shoving the officer and subsequently siccing

the dog on the officer involved two distinct acts flowing from two

separate impulses.

V.

The State concedes that the two offenses for which Trappman

was convicted occurred in the course of a single criminal

transaction or episode. The material facts related to the

commission of the two offenses similarly are not disputed. Nor is it

disputed that the statutory elements of the lesser offense (battery of

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a law enforcement officer) were subsumed by the greater offense

(aggravated battery of a law enforcement officer) and that only one

punishment would be applicable if the offenses were predicated on

a singular act.

Accordingly, the sole question presented for us to decide is

whether the relevant conduct of Trappman constituted one criminal

act of battery of a law enforcement officer, subject to only one

punishment, or two successive criminal acts of battery of a law

enforcement officer (the latter of which was in an aggravated form),

subject to two punishments. We review this question de novo. See

Pizzo v. State, 945 So. 2d 1203, 1206 (Fla. 2006) (“A double

jeopardy claim based upon undisputed facts presents a pure

question of law and is reviewed de novo.”). Concerning whether

there were multiple acts of battery, there is no suggestion that

battery is a continuing offense that cannot be committed by an

isolated act. Nor is there any suggestion that the question here is

resolved by the manner in which the statutory offenses are defined. 5

5. This stands in contrast to cases such as State v. Johnson,
343 So. 3d 46, 47 (Fla. 2022), in which we upheld multiple
punishments for a single act of leaving the scene of an accident
involving multiple victims. Relying on the text of the statutory

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Ultimately, we agree with the State that Blockburger’s distinct acts

analysis provides the appropriate basis for deciding the issue in this

case. That test serves to implement the statutory directive to

“convict and sentence for each criminal offense committed.”

A.

We begin our analysis by examining our decision in Hayes, in

which the defendant, who was convicted and sentenced for both

armed robbery and grand theft of an automobile for conduct in the

course of a single criminal episode, challenged the district court

decision upholding the dual punishments against a double jeopardy

claim. 803 So. 2d at 697-98. Specifically, we considered

the issue . . . whether a defendant may be separately
convicted of both armed robbery and grand theft of a
motor vehicle where the defendant steals various items
from inside a victim’s residence, including the victim’s
car keys, and then proceeds outside the residence to
steal the victim’s motor vehicle utilizing these keys.

prohibition as understood in the context of the statutory scheme,
we concluded that the “permissible unit of prosecution” under the
statute authorized “prosecution on a per-crash-victim basis, rather
than on a per-crash basis.” Id. The arguments presented here do
not turn on a unit-of-prosecution analysis.

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Id. at 697. Based on the circumstances described, we decided that

the two offenses were based on “distinct and independent criminal

acts” and therefore that the imposition of two punishments was

appropriate. Id. at 704-05.

The foundation for our analysis in Hayes was our recognition

that “the prohibition against double jeopardy does not prohibit

multiple convictions and punishments [when] a defendant commits

two or more distinct criminal acts,” id. at 700—that is, when the

offenses are not the same “in fact.” We also recognized that in

deciding whether criminal conduct constitutes a single criminal act

as opposed to multiple distinct acts, “it is difficult to formulate a

bright-line rule because the determination is often fact-specific.” Id.

at 705.

Nonetheless, after surveying Florida case law and case law

from certain other jurisdictions, we articulated a standard for

making such a determination “in a case involving a single victim’s

property.” Id. at 704. We said that

courts should look to whether there was a separation of
time, place, or circumstances between the initial armed
robbery and the subsequent grand theft, as those factors
are objective criteria utilized to determine whether there
are distinct and independent criminal acts or whether

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there is one continuous criminal act with a single
criminal intent.

Id. (emphasis added). We elaborated that in deciding whether

multiple criminal acts occurred, “the courts should consider the

location of the items taken, the lapse of time between takings, the

number of owners of the items taken, and whether intervening

events occurred between the takings.” Id.

Based on this analytical framework, we held that even though

“there was only a single victim . . . and there were no intervening

acts, . . . the robbery of various items from inside the residence was

sufficiently separate in time, place and circumstances from Hayes’

theft of the motor vehicle parked outside the victim’s residence to

constitute distinct and independent criminal acts.” Id. Our

analysis did not consider whether the conduct of Hayes involved

“successive impulses,” the touchstone articulated in Blockburger for

determining whether separate violations of a particular statutory

provision have occurred.6

6. In our discussion of case law from other jurisdictions, we
did mention authorities that employed the concept of “impulses” in
determining whether multiple instances of a particular offense had

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B.

In contrast to Hayes, our more recent decision in Graham

relied directly on Blockburger’s “distinct acts” analysis. We find that

Graham—in tracking Blockburger—provides a more helpful line of

analysis for deciding the issue presented by Trappman.

The question in Graham, in which the First District had

affirmed the defendant’s convictions and sentences, was “whether

double jeopardy prohibits dual convictions under the same statute

[when] the acts upon which the charges are based occur within a

single criminal episode.” 207 So. 3d at 137. The dual convictions

and sentences were for lewd and lascivious molestation based on

the successive touchings of different parts of the victim’s body. Id.

at 136. The victim’s testimony established that the defendant went

to her as she slept and “touch[ed] [her] breasts under her shirt.” Id.

at 141. Then, when the “victim turned over” she felt the defendant

occurred. See Hayes, 803 So. 2d at 702-03. But we incorporated
nothing regarding the concept of “impulses” in our own analysis.

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“touching her buttocks.” Id. 7 We concluded that “these touches

were each individual acts, committed sequentially” and that

“[u]nder a ‘distinct acts’ analysis, it is clear that punishment was

warranted for each individual touch.” Id. We analogized the case to

Blockburger:

Similar to Blockburger—in which the Court held that “the
payment for the additional drug, however closely
following, was the initiation of a separate and distinct
sale completed by its delivery”—in this case, a new act
began each time one touch ended and another was
initiated, no matter how closely each one followed the
other.

Id. (quoting Blockburger, 284 U.S. at 301).

We thus approved the First District’s decision to affirm the

dual convictions and sentences. Id. But we disagreed with its

reasoning—reasoning that we concluded confused the proper

analysis concerning multiple punishments for the violation of a

particular criminal prohibition. Id. We recognized that the First

District’s reasoning found its genesis in the reasoning of one of our

7. Although we did not focus on the circumstance, it appears
that the victim’s act of turning over could be seen as an act of
resisting the illicit contact.

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own decisions—State v. Meshell, 2 So. 3d 132 (Fla. 2009). Graham,

207 So. 3d at 136.

In Meshell, we considered whether “Meshell’s convictions for

lewd and lascivious battery . . . for vaginal penetration or union . . .

and for oral sex . . . violated double jeopardy.” 2 So. 3d at 133. We

upheld the dual convictions and sentences, concluding that

“[b]ecause the oral sex . . . is a criminal act distinctively different

from the vaginal penetration or union . . . , there is not a double

jeopardy violation.” Id. at 136. We reasoned that “sexual acts of a

separate character and type requiring different elements of

proof . . . are distinct criminal acts that the Florida Legislature has

decided warrant multiple punishments.” Id. at 135.

Notwithstanding the focus of our reasoning in Meshell, we did quote

a district court decision stating that “the fact that the same victim

is sexually battered in the same manner more than once in a

criminal episode by the same defendant does not conclusively

prohibit multiple punishments” and that “[s]patial and temporal

aspects are equally . . . important as distinctions in character and

type in determining whether multiple punishments are

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appropriate.” Id. (quoting Saavedra v. State, 576 So. 2d 953, 957

(Fla. 1st DCA 1991), approved, 622 So. 2d 952 (Fla. 1993)).

In Graham, we criticized the reasoning of Meshell as follows:

Meshell had violated the lewd or lascivious molestation
statute twice: First, when he penetrated the victim’s
vagina, and second, when he penetrated the victim’s
mouth. Under the Blockburger “distinct acts” analysis,
each act was distinct because each act indicated a
different impulse to violate the statute. Therefore,
multiple punishments under the same statute would not
violate double jeopardy. However, this Court held that
the two acts were “distinct” because they were “sexual
acts of a separate character and type requiring different
elements of proof, such as those proscribed in the sexual
battery statute.” Meshell, 2 So. 3d at 135 (emphasis
added). By including the “different elements” language in
its analysis of “distinct acts,” it appears this Court may
have conflated the two tests set forth in Blockburger.

Graham, 207 So. 3d at 139-40.

C.

We reiterate Graham’s emphasis on the importance of

distinguishing between the two tests set forth in Blockburger. The

analysis employed in determining whether offenses are the same “in

fact” is very different from the analysis employed in determining

whether offenses are the same “in law.” Multiple punishments are

precluded only when the charged offenses are both the same in fact

and the same in law. So it is essential that the distinct acts test not

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be conflated or confused with—or displaced by—the same-elements

test. Acts are distinct when they result from “successive impulses”

even when the character of the acts is the same. But we also

recognize that in applying the distinct acts test, it is significant that

the conduct of a defendant has violated a single prohibition in

multiple ways. Although a variation in the manner in which the

prohibition is violated is not necessary to establish the existence of

distinct acts, such variation may signal that the defendant’s

wrongdoing involves “successive impulses” to violate the same

prohibition and thus results in distinct acts warranting separate

punishment for each act.

Likewise, we acknowledge that Hayes’s teaching that “courts

should look to whether there was a separation of time, place, or

circumstances” in the conduct of a defendant points to factors that

may evidence that the defendant was guilty of conduct involving

successive impulses to violate the same prohibition. See Hayes,

803 So. 2d at 704. But the touchstone of the analysis—as

Blockburger held—must be whether there were such successive

impulses. As in Graham, we adhere to Blockburger’s distinct acts

test, which recognized that “[e]ach of several successive” violations

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“constitutes a distinct offense, however closely they may follow each

other” and placed the focus of the analysis squarely on whether

there were “successive impulses.” Blockburger, 284 U.S. at 302.

Under the Blockburger test, separate instances of an offense—

arising from successive impulses—may be committed at the same

place, in the same manner, and in close temporal connection.

D.

Applying the Blockburger distinct acts test, we conclude that

Trappman’s conduct involved successive impulses to commit a

battery and that his dual convictions and sentences were properly

affirmed by the First District. After Trappman first battered the

officer by shoving him and the officer shoved back, Trappman

responded to the officer’s resistance not by continuing the shoving

match but by using the pit bull to escalate his violence against the

officer. Trappman’s conduct unquestionably “unite[d] in swelling a

common stream of action.” Id. (quoting Wharton’s Criminal Law

(11th Ed.) § 34). But that does not mean that the conduct involved

only one criminal act. On the contrary, there was a disjuncture in

Trappman’s conduct when he moved from shoving to deploying the

dog. Successive criminal impulses to batter the officer are evident

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in the sequence of events. Those successive impulses resulted in

distinct acts that are subject to separate punishments. 8

In this respect, Trappman’s course of conduct is akin to the

defendant’s course of conduct in Graham. In both cases, although

there was a close temporal connection between the successive

instances of forbidden physical contact, distinct criminal acts

nonetheless resulted from successive impulses. Cf. Brown v. State,

430 So. 2d 446, 446-47 (Fla. 1983) (upholding convictions for two

counts of robbery of a retail establishment in which the taking of

property was from two different cash registers controlled by two

different employees, and reasoning that “[w]hat is dispositive is

whether there have been successive and distinct forceful takings

with a separate and independent intent for each transaction”).

Recently, the Supreme Court of Connecticut applied a similar

distinct acts analysis in State v. Cody M., 259 A.3d 576 (Conn.

8. We need not and do not hold that when an offense, such as
battery, may be committed by a single blow, that each additional
blow laid on results in an additional offense. The test is not
whether there are successive blows but whether there are
successive impulses. We do not suggest that multiple blows may
not spring from a single impulse.

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2020), when it considered “whether multiple convictions for

violation of a standing criminal protective order, arising from a

series of statements made during a court hearing by the defendant,

Cody M., to the person protected by the order, violate the

constitutional protection from double jeopardy.” Id. at 580. The

basic facts were as follows:

When the hearing began, the defendant [who was
under incarceration] tried to engage in “small talk” with
the victim, but she ignored him and did not make eye
contact. The victim testified that the defendant had
“whispered to me that he still loved me and had asked
me why I had a block on the phone and that I said I
would never do this to him . . . . [W]hen I wasn’t
responding to him, his tone changed and he told me that
‘you’re going to have problems when I get home, bitch,’
and . . . I looked at him, and he told me that he was
going to fucking kill me.”

Id. at 581 (omissions and second alteration in original).

After rejecting an argument that criminal violations of a

protective order were in the nature of a continuing offense, id. at

584, the court considered “whether the defendant’s statements in

th[e] case constituted a single act or multiple acts,” id. at 588. The

court stated that “distinct repetitions of a prohibited act, however

closely they may follow each other . . . may be punished as separate

crimes without offending the double jeopardy clause.” Id. (omission

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in original) (quoting State v. Miranda, 794 A.2d 506, 524 (Conn.

2002)). The court concluded “that the defendant’s statements

constitute two distinct acts because the victim’s resistance,

effectuated by her silence, was an intervening event causing the

defendant to escalate his behavior.” Id. The court further reasoned

that “[w]hat separates the defendant’s statements into two criminal

acts is the defendant’s clear escalation, showing a ‘fresh impulse’ to

move from nonthreatening conversation to threatening

conversation.” Id. (emphasis added).

Although the contexts are somewhat different, we find the line

of analysis in Cody M.—with its focus on successive impulses—to

be consistent with our reasoning here.9

We thus approve the First District’s conclusion that

Trappman’s conduct involved distinct acts. We disapprove the

conflict case, Olivard, to the extent that it failed to apply

Blockburger’s distinct acts test, with that test’s focus on successive

9. Although we recognize—as does Cody M.—that an
escalation of criminal conduct may provide evidence of successive
impulses, we do not suggest that such an escalation is necessary to
a finding of successive impulses.

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impulses. We also disapprove the decision of the Fifth District

Court of Appeal in Rivera v. State, 286 So. 3d 930 (Fla. 5th DCA

2019), for the same reason. In failing to consider the distinct acts

test, the Fifth District erroneously applied a categorical rule that,

under section 775.021(4), “multiple convictions and sentences” may

not be imposed “for aggravated battery and battery committed

against one victim within the same criminal transaction or episode.”

Id. at 932 (footnotes omitted).

VI.

Based on the holding in Blockburger—as well as our holding in

Graham—that multiple punishments may be imposed for distinct

acts springing from successive impulses to violate a single criminal

prohibition in the course of a single criminal episode, we approve

the First District’s decision to affirm Trappman’s dual convictions

and sentences. And we disapprove Olivard and Rivera as

inconsistent with our reasoning here.

It is so ordered.

MUÑIZ, C.J., and LABARGA, COURIEL, GROSSHANS, and
FRANCIS, JJ., concur.
SASSO, J., did not participate.

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal
Certified Direct Conflict of Decisions/Direct Conflict of
Decisions

First District - Case No. 1D19-1883

(Santa Rosa County)

Jessica J. Yeary, Public Defender, Tallahassee, Florida, Michael L.
MacNamara, General Counsel, Tallahassee, Florida, and Maria Ines
Suber, Assistant Public Defender, Second Judicial Circuit,
Tallahassee, Florida,

for Petitioner

Ashley Moody, Attorney General, Tallahassee, Florida, and David
Welch, Assistant Attorney General, Tallahassee, Florida,

for Respondent

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