PETITIONER AJOLOKO’S MOTION FOR REHEARING,
REHEARING EN BANC,CLARIFICATION
REQUEST FOR A WRITTEN OPINION PURSUANT TO RULE 9.330(a)
Petitioner, Charles O. Ajoloko, pursuant to Rule 9.330(a) and Rule 9.331(d), Florida Rules of Appellate Procedure, hereby moves this Court for clarification, rehearing, and rehearing en banc of the Court’s order per curiam of October 20, 2016, denying Ajoloko’s original petition for Habeas Corpus.
Petitioner respectfully asserts that the Court has overlooked or misapprehended points of law and facts, and therefore requests a rehearing. Petitioner also respectfully asserts that this case is of exceptional importance and also requests a rehearing en banc.
Because this Court issued only a per curiam denial, Petitioner also respectfully asserts that a written opinion would provide a legitimate, good faith basis for Florida Supreme Court review and requests that this Court issue a written opinion regarding its decision denying the petition.
MOTION FOR REHEARING/REHEARING EN BANC
As set forth below, this Court’s per curiam denial of Petitioner’s petition overlooks or misapprehends the following three points of law.
- This Court’s Per Curiam Order Overlooks That Petitioner’s Appellate Counsel’s Failure to Raise Double Jeopardy was Fundamental Error.
Petitioner was ultimately charged and convicted of attempted robbery with a firearm and aggravated assault with a firearm. Petitioner contends that conviction of both aggravated assault with a firearm and attempted robbery with a firearm constitutes double jeopardy, but this issue was not raised due to petitioner’s ineffective appellate counsel.
“When separate convictions are challenged on double jeopardy grounds, the essential elements of both statutory offenses are compared to determine if they are the same offense for double jeopardy purposes. This comparison test focuses on whether each separate statutory offense requires proof of an essential element that the other does not. (See Blockburger v. United States, 284 U.S. 299 (1932).) This test is only determinative if a single factual act supports both convictions.” (Hankins v. State, 123 So.3d 666, 668 (Fla. 5th DCA 2013).)
Under the Blockburger test, “two statutory offenses are essentially independent and distinct if each offense can possibly be committed without necessarily committing the other offense.” (Rotenberry v. State 468 So. 2d at 971, 976 (Fla. 1985) (quoting Baker v. State, 425 So. 2d 36, 50 (Fla. 5th DCA 1982) (Cowart,J., dissenting), approved in part, quashed in part, 456 So. 2d 419 (Fla. 1984)).
“It is not ‘possible’ to attempt to commit an armed robbery by threatening to do violence with a deadly weapon to a victim if he does not part with the possession of property in his possession without at the same time by the same act also committing an aggravated assault on that victim. Therefore, the two offenses are in law and in fact indistinguishable and it cannot be demonstrated that they are not “the same offense” within the constitutional double jeopardy prohibition.” (Akins v. State, 462 So.2d 1161, 1163 (Fla. 5th DCA 1984) (Cowart, J., dissenting).)
“Prior appellate counsel’s failure to raise double jeopardy as an issue deviated from the norm. A double jeopardy violation is fundamental error and can be raised for the first time on appeal. (Hankins v. State (Fla. 5th DCA 2013) 123 So.3d 666, 668.)
The prohibition against double jeopardy and the guarantee of due process are constitutional rights of the highest order. Appellate counsel should raise on appeal all double jeopardy violations that result in improper convictions, even if they do not result in a reduction of the overall sentence. The failure of appellate counsel to raise this double jeopardy issue has undermined confidence in the correctness of the result on appeal. (See Johnson v. Wainwright, 463 So. 2d 207 (Fla. 1985).) This Court’s per curiam order failed to consider the law’s recognition that appellate counsel’s failure to raise this issue constituted prejudicial error to Petitioner.