IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

 NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JAHMAN WHITFIELD,

Petitioner,

v. Case No. 5D16-1262

STATE OF FLORIDA,

Respondent.

________________________________/

Opinion filed October 28, 2016

Petition Alleging Ineffectiveness of 

Appellate Counsel,

A Case of Original Jurisdiction.

Jahman Whitfield, Live Oak, pro se.

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Douglas T. Squire, 

Assistant Attorney General, Daytona 

Beach, for Respondent.

EDWARDS, J.

Jahman Whitfield petitions for postconviction relief pursuant to Florida Rule of 

Appellate Procedure 9.141(d), asserting ineffective assistance of appellate counsel. 

Following a jury trial, Whitfield was convicted of raping, kidnapping, strangling, and 

battering his grandmother in her house. We find merit only as to Whitfield’s claim in 

ground one of his petition that, under the circumstances of this case, his convictions for 

both domestic battery by strangulation (count four) and battery on a person sixty-five 
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years or older (count six) violate the prohibition against double jeopardy and that appellate 

counsel’s failure to raise that issue on direct appeal constitutes ineffective assistance of 

counsel. 

To grant postconviction relief based on ineffective assistance of appellate counsel,

this court must first determine: 

[W]hether the alleged omissions are of such magnitude as to 

constitute a serious error or substantial deficiency falling 

measurably outside the range of professionally acceptable 

performance and, second, whether the deficiency in

performance compromised the appellate process to such a 

degree as to undermine confidence in the correctness of the 

result.

Dill v. State, 79 So. 3d 849, 851 (Fla. 5th DCA 2012) (alteration in original) (quoting 

Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000)). The failure to raise a potentially 

meritorious issue can constitute deficient performance. See, e.g., King v. State, 15 So. 

3d 27, 28 (Fla. 1st DCA 2009) (granting new appeal due to appellate counsel’s failure to 

raise two potentially meritorious issues). This standard parallels the standard for

ineffectiveness of trial counsel under Strickland v. Washington, 466 U.S. 668 (1984). This

court has granted relief under rule 9.141 for failure to argue double jeopardy as

fundamental error on direct appeal. See, e.g., Delgado v. State, 174 So. 3d 1071, 1073-

74 (Fla. 5th DCA 2015).

Section 784.041(2)(a), Florida Statutes (2012), criminalizes domestic battery by 

strangulation (count four). It is an aggravated form of simple battery. Ramirez v. State, 

113 So. 3d 105, 108 (Fla. 5th DCA 2013); accord Thompson v. State, 123 So. 3d 1188, 

1188-89 (Fla. 4th DCA 2013). Count six charged Whitfield with battery on a person sixtyfive years or older. This is a reclassified version of simple battery, defined simply as a 
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battery on a person sixty-five years of age or older. § 784.08(2), Fla. Stat. (2012). Both 

are third-degree felonies. §§ 784.041(3); 784.08(2)(c), Fla. Stat. (2012).

In Ramirez, this Court held that two pairs of convictions, one consisting of felony 

battery (one prior) and domestic battery by strangulation, and one consisting of felony 

battery (one prior) and battery on a law enforcement officer, violated double jeopardy. 

113 So. 3d at 108. This Court reasoned that both pairs of convictions ran afoul of section 

775.021(4)(b)2., Florida Statutes (2009), which forbids convictions of two offenses that 

are “different degrees of the same offense.” Id. at 107 (citing Valdes v. State, 3 So. 3d 

1067, 1077 (Fla. 2009)). Though the various offenses were not found in the same statute, 

they had a degree relationship because each was merely an aggravated form, or higher 

degree, of simple battery. Id. at 108. The same logic applies here. Both domestic battery 

by strangulation and battery on a person sixty-five or older are aggravated forms, or 

higher degrees, of simple battery. See §§ 784.041(2)(a); 784.08(2), Fla. Stat. (2012). 

Therefore, prohibitions against double jeopardy preclude Whitfield from being 

convicted, adjudicated guilty, and sentenced for both charges, which arise out of the same 

criminal episode. See Ramirez, 113 So. 3d at 108-09. We acknowledge the State’s 

argument that under appropriate circumstances, one could commit and be convicted of 

two seemingly similar crimes committed in a single episode without violating double 

jeopardy. See, e.g., State v. Drawdy, 136 So. 3d 1209, 1214 (Fla. 2014). However, the 

State did not identify different conduct, acts, or events sufficiently as to both counts, nor 

was the jury instructed to consider Whitfield’s conduct underlying counts four and six as 

anything other than differing degrees of the same crime. Appellate counsel should have 
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raised this issue on appeal. See, e.g., Delgado, 174 So. 3d at 1073-74 (granting writ 

under rule 9.141(d) due to counsel’s failure to raise double jeopardy on appeal). 

When dual convictions violate double jeopardy, the proper remedy is to vacate one

conviction. See Benjamin v. State, 77 So. 3d 781, 784 (Fla. 4th DCA 2011) (quoting 

Binns v. State, 979 So. 2d 439, 442 (Fla. 4th DCA 2008)); see also Anthony v. State, 108 

So. 3d 1111, 1120 (Fla. 5th DCA 2013) (holding that two of appellant’s four convictions 

for providing false information to police were barred by double jeopardy). Normally, the 

remedy would be vacation of the lesser offense. Delgado, 174 So. 3d at 1073. Here, both 

counts involved are third-degree felonies; however, count four is a “level six” felony for 

scoresheet purposes, while count six is a lower-scoring “level four” felony. § 921.0022(d)-

(f), Fla. Stat. (2012). Therefore, we grant Whitfield’s petition, in part, regarding the issue

raised in ground one, and remand the case to the postconviction court with directions to 

vacate the judgment and sentence only for count six. We carefully considered and deny 

all other grounds asserted by Whitfield.

PETITION GRANTED IN PART, DENIED IN PART, AND REMANDED.

SAWAYA and ORFINGER, JJ., concur.