HAYNES v. STATE, 828 So.2d 457 (Fla.App. 4 Dist. 2002)

ALVIN HAYNES, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 4D01-3705District Court of Appeal of Florida, Fourth District.
Opinion filed October 16, 2002

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie

Page 458

County; Dan L. Vaughn, Judge; L.T. Case No. 01-559-CFB.

Carey Haughwout, Public Defender, Jeffrey Anderson and Samuel A. Walker, Assistant Public Defenders, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

We affirm appellant’s convictions except for appellant’s conviction for simple battery. Because appellant was convicted of battery of a law enforcement officer as a result of the very same act on which the simple battery conviction is based, the two convictions violate double jeopardy. Giles v. State, 763 So.2d 1178 (Fla. 4th DCA 2000). We disagree with the state’s argument that appellant waived this issue by requesting the jury instruction on simple battery because double jeopardy is a fundamental error which can be raised for the first time on appeal. Grant v. State, 770 So.2d 655, 658 n. 4 (Fla. 2000). We therefore affirm on all issues except the conviction for simple battery which is reversed.

FARMER, KLEIN and STEVENSON, JJ., concur.